Drisdel v. Lewis

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

SOUTHEASTERN DIVISION

)

LEONARDO DRISDEL, )

)

Plaintiff, )

)

v. )

) Case No. 1:18 CV 50 MTS

JASON LEWIS, )

)

Respondent. )

MEMORANDUM AND ORDER

This matter is before the Court on Petitioner Leonardo Drisdel’s Petition under 28 U.S.C.

§ 2254 for writ of habeas corpus.1 For the following reasons, Petitioner’s § 2254 petition is denied.

I. Procedural History

Petitioner is currently incarcerated at the Southeast Correctional Center in Charleston,

Missouri. In June of 2005, he was charged in the Circuit Court of St. Louis City with murder in the

first degree and armed criminal action. On May 18, 2012, a jury found Petitioner guilty on both

counts. Petitioner was sentenced to life imprisonment without parole for the murder count and a

concurrent term of 150 years’ imprisonment on the armed criminal action count. Petitioner’s

convictions and sentences were affirmed on direct appeal.2 See State v. Drisdel, 417 S.W.3d 773

1 Because Drisdel filed an amended petition, his original petition for writ of habeas corpus, Doc. [1], is denied as moot.

2 Drisdel raised twelve grounds of trial court error on direct appeal. He alleged that the trial court erred in: (1) refusing

to allow him to present the defense of not guilty by reason of insanity; (2) overruling his objections under Batson v.

Kentucky, 476 U.S. 79 (1986), to the striking of four African-American venire members; (3) submitting a verdict director

that did not conform to the Missouri Approved Instructions; (4) allowing the State to examine the venire panel during

voir dire concerning whether they could impose a mandatory sentence of life without parole; (5) not allowing him to

(Mo. App. 2014). Petitioner thereafter filed a timely pro se motion for post-conviction relief under

Missouri Supreme Court Rule 29.15 in the circuit court. An amended motion was subsequently filed

by appointed counsel.3 The circuit court denied the amended motion after an evidentiary hearing.

The Missouri Court of Appeals affirmed the circuit court’s judgment. See Drisdel v. State, 509

S.W.3d 860 (Mo. App. 2017). The appellate court issued its mandate on March 3, 2017.4 Petitioner

filed a timely5 petition for writ of habeas corpus on March 5, 2018, pursuant to 28 USC § 2254.

Petitioner sought and was granted extensions of time until July 23, 2018, when the amended petition,

Doc. [11], was filed.

Petitioner asserts five grounds for relief. Grounds one through four were addressed by the

Missouri Court of Appeals. Because the state appellate court’s decisions were not unreasonable

applications of clearly established law and not based on unreasonable determinations of fact,

submit a self-defense instruction; (6) denying his motion for mistrial after the State commented during closing argument

that the jury would not receive a self-defense instruction; (7) entering judgment because it did not have jurisdiction to

sentence him to first-degree murder because he did not waive jury sentencing; (8) refusing to submit a jury instruction

on the lesser-included offense of involuntary manslaughter; (9) submitting jury verdict directors charging the manner of

death as “striking and asphyxiating” when the indictment only identified “striking” as the cause of death; (10) submitting

a jury instruction that voluntary intoxication does not relieve a defendant of criminal responsibility because there was

no evidence that he had consumed alcohol; (11) sustaining the State’s objection to Detective Leopold testifying that

Petitioner made an out-of-court statement that he acted in self-defense; and (12) failed to grant his motion for judgment

of acquittal because the evidence was insufficient to conviction him of first degree murder and armed criminal action.

3 In his amended motion, Petitioner raised two grounds for relief, alleging that trial counsel was ineffective for (1)

advising Petitioner not to speak with Dr. Richard Scott about the events on the day of the murder, and (2) advising

Petitioner not to testify. On appeal, post-conviction counsel only raised the issue that trial counsel was deficient for

advising Petitioner not to testify.

4 Petitioner did not seek transfer to the Supreme Court of Missouri.

5 Respondent asserts a statute of limitations defense. 28 U.S.C. § 2244(d)(1) sets a one-year statute of limitations period

for petitioners seeking federal habeas relief from state court judgments. Finch v. Miller, 491 F.3d 424, 426 (8th Cir.

2007). This one-year statute of limitations begins to run on the latest of four alternative dates. Jihad v. Hvass, 267 F.3d

803, 804 (8th Cir. 2001). Relevant here is the provision stating that a habeas petitioner has one year from the date his

judgment becomes final to file a federal petition for writ of habeas corpus. 28 U.S.C. § 2244(d)(1)(A). Under Missouri

state-court procedures, post-conviction relief proceedings are not final until the issuance of the mandate. Payne v.

Kemna, 441 F.3d 570, 572 (8th Cir. 2006). The court’s mandate issued March 3, 2017. Petitioner filed his petition for

writ of habeas corpus on Monday, March 5, 2018 (March 3, 2018 would have been a Saturday), the final day of the one-

year statute of limitations (when the last day of a filing period is on a weekend or legal holiday, the period continues

until the end of the next day that is not a Saturday, Sunday, or legal holiday day. Fed. R. Crim 45(a)(1)(B). The petition

is, therefore, timely.

Petitoner’s petition for writ of habeas corpus will be denied as to those grounds. Ground five is

denied as well because it was not raised during Petitioner’s state proceedings and is procedurally

defaulted.

II. Factual Background

On the evening of June 4, 2005, Petitioner abruptly left his home between 8:30 p.m. and 9:00

p.m., telling his wife he would return in ten minutes. Doc. [12-2] at 371. At 12:15 a.m., Petitioner

returned home. Id. His wife met him in the unlit hallway leading to their bedroom. Id. at 373. At that

time, she noticed he was “nervous and jittery.” Id. at 374. In the light of the bathroom, she saw that

“his face, his arms, his hands…his shirt and his pants” were covered in blood. Id. As he cleaned

himself, she noticed a cut on his finger and small bump on his forehead Id. at 376, 383. He then

finished rinsing, wiped the bathroom down with a washcloth, toilet paper, and ammonia, washed his

soiled clothes in the washing machine, shaved off his facial hair, changed clothes, and departed. Id.

at 377-79. Petitioner’s wife called the police. Id. at 384. Police officers located Petitioner a few hours

later near a bus stop close to his house. Id. at 385, 422. They noticed a cut on his finger, but did not

observe any other injuries when they took Petitioner into custody. Id. at 424, 426. Subsequently,

police officers located the body of the victim, a young woman, in her apartment. Id. at 446-47. Signs

of a struggle were evident at the scene. Id. at 537. The victim’s body had suffered multiple injuries

consistent with repeated beating, biting, smothering, and cutting. Id. at 515-26. The coroner

determined her cause of death to be from head trauma and asphyxia. Id. at 536.

At trial, Petitioner did not testify and his statements made to police were not entered into

evidence. The State, however, offered blood and DNA evidence found at the crime scene, bite

wounds matching Petitioner’s teeth, and the victim’s blood found in Petitioner’s bathroom and on

the clothes he wore the night of the murder. Id. at 638, 650. Petitioner was found guilty of murder

in the first degree and armed criminal action, and was sentenced to life without parole or probation

as to the murder count and 150 years of imprisonment as to the armed criminal action count.

III. Legal Standard

When a claim has been adjudicated on the merits in state-court proceedings, habeas relief is

permissible under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), though

such relief is “limited and deferential.” Lonholt v. Iowa, 327 F.3d 748, 751 (8th Cir. 2003). Under

AEDPA, 28 U.S.C. § 2254(d), habeas relief is only permissible if the state court’s determination:

(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 Federal law if “it applies a rule

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

facts that is materially indistinguishable from a decision of the [Supreme Court] but reaches a

different result.” Brown v. Payton, 544 U.S. 133, 141 (2005). “The state court need not cite or even

be aware of the governing Supreme Court cases, ‘so long as neither the reasoning nor the result of

the state-court decision contradicts them.’” Brown v. Luebbers, 371 F.3d 458, 4647 (8th Cir. 2004)

(quoting Early v. Packer, 547 U.S. 3, 8 (2002)). “In the ‘contrary to’ analysis of the state court’s

decision, [the federal court’s] focus is on the result and any reasoning that the court may have given;

the absence of reasoning is not a barrier to a denial of relief.” Id.

A decision involves an “unreasonable application” of clearly established law if “the state

court applies [the Supreme Court’s] precedents to the facts in an objectively unreasonable manner,”

see Payton, 544 U.S. at 141 and Williams v. Taylor, 529 U.S. 362, 405 (2000), or “if the state court

unreasonably extends a legal principle from [Supreme Court] 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.” Id. at 406. “Clearly established” Supreme Court law “refers to the holdings, as opposed to

the dicta, of [the Supreme] Court’s decisions as of the time of the relevant state-court decision.”

Williams, 529 U.S. at 412. “Federal habeas relief is warranted only when the refusal was ‘objectively

unreasonable,’ not when it was merely erroneous or incorrect.” Carter v. Kemna, 255 F.3d 589, 592

(8th Cir. 2001) (quoting Williams, 529 U.S. at 410-11 (2000)). “[I]t is not enough for us to conclude

that, in our independent judgment, we would have applied federal law differently from the state

court; the state court’s application must have been objectively unreasonable.” Rousan v. Roper, 436

F.3d 951, 956 (8th Cir. 2006). “An ‘unreasonable application’ is different from an incorrect or

erroneous application; a prisoner must establish that a state court’s adjudication was not only wrong,

but also objectively unreasonable, such that ‘fair-minded jurists’ could not disagree about the proper

resolution.” Smith v. Titus, 958 F.3d 687, 691 (8th Cir. 2020).

When reviewing whether a state court decision involves an “unreasonable determination of

the facts,” state court findings of “basic, primary, or historical facts” are presumed correct unless the

petitioner rebuts the presumption with clear and convincing evidence. Collier v. Norris, 485 F.3d

415, 423 (8th Cir. 2007) (citations omitted); § 28 U.S.C. § 2254(e)(1). Erroneous findings of fact by

the state courts do not ensure the grant of habeas relief. Rather, the determination of these facts must

be unreasonable in light of the evidence of record. Id.

IV. Discussion

Petitioner asserts three claims of trial error and two claims of ineffective assistance of trial counsel.

A. Trial Court Error Grounds

Ground One: Petitioner claims he was denied his rights to due process of law, to

remain silent, to be free from self-incrimination, and a fair trial under the Fifth and

Fourteenth Amendments to the United States Constitution when the trial court did not allow

him to present a defense of not guilty by reason of mental disease or defect because he did not

discuss the facts of the crime with the State’s mental health expert.

Petitioner gave notice to the trial court that he planned to rely on the defense of not guilty by

reason of mental disease or defect. He procured an expert, Dr. Steven Stromsdorfer, to examine him

and prepare a report. Doc. [12-5] at 24. In Dr. Stromsdorfer’s initial report he did not find that

Petitioner suffered from a mental disease or defect. Id. A copy of that report was provided to the

State on September 8, 2008. Id. The State was later provided with a “supplemental report” in which

Dr. Stromsdorfer found that Petitioner did suffer from a mental disease or defect which may provide

him with a defense. Id. (emphasis added). The State objected to the findings of the initial and

“supplemental” reports and requested an evaluation be done by another psychiatrist or psychologist,

as allowed under Mo. Rev. Stat. § 552.020.6 and § 552.030 RSMo. Id. at 25, 26. The trial court

ordered another psychological examination of Petitioner. During an examination by Dr. Richard

Scott, Petitioner refused to answer questions regarding the day of and immediately after the alleged

offenses. The State then sought and obtained an order from the trial court to compel Petitioner to

answer offense-specific questions during a subsequent evaluation by Dr. Scott. Doc. [11] at 9. Dr.

Scott testified at the hearing on the motion to compel that he needed Petitioner’s explanation of the

events surrounding the crime to assess Petitioner’s criminal responsibility. Doc. [12-4] at 31. The

trial court ordered another exam by Dr. Scott. The order directed Petitioner to participate in the

criminal responsibility portion of the evaluation by providing his account of the alleged offense to

the examiner, Doc. [12-4] at 33, and warned Petitioner that “[f]ailure by the defendant to comply

with this court’s order will result in further sanctions by the court including but not limited to the

absolute bar by the defendant of the defense of mental disease or defect.” Doc. [12-4] at 32.

Petitioner declined to discuss the events surrounding the crimes he was charged with and was not

allowed to present the defense of mental disease or defect.

On direct appeal, the Missouri Court of Appeals found that, “[b]ecause Petitioner placed his

mental condition at issue, he voluntarily subjected himself to a mental examination by the State’s

expert. Therefore, any statements required of the [Petitioner] by the expert during the examination

cannot be characterized as “compelled,” and [did] not violate [Petitioner’s] rights to remain silent or

to counsel,’” citing State v. Worthington, 8 S.W.3d 83, 90-92 (Mo. banc 1999). Doc. [12-9] (see also

Worthington v. Roper, 619 F. Supp. 2d 661, 710-11 (E.D. Mo. 2009). The Missouri Court of

Appeals in this case, as well as the Supreme Court of Missouri in Worthington, cited to Estelle v.

Smith, 451 U.S. 454 (1981). In Estelle, the trial court ordered, sua sponte, that the accused be

evaluated by a state psychiatrist to determine if he was able to stand trial. Id. at 456-57. The

defendant did not receive a Miranda warning prior to or at the examination, and his lawyer was not

present. It was not clear if defense counsel even knew the exam had been ordered. Following the

defendant’s murder conviction, the state psychologist testified at the penalty hearing, relying on the

defendant’s own statements, regarding the defendant’s future dangerousness. Based on the

testimony, the jury recommended a death sentence. The Supreme Court vacated the sentence,

holding that a “criminal defendant, who neither initiates a psychiatric evaluation nor attempts to

introduce any psychiatric evidence may not be compelled to respond to a psychiatrist if his

statements can be used against him at a capital sentencing proceeding.” Id. at 468. The Supreme

Court in Estelle, however, also explained that when a defendant asserts the insanity defense and

introduces supporting psychiatric testimony, his silence may deprive the State of the only effective

means it has of controverting his proof on an issue that he interjected into the case. Id. at 465.

“Accordingly, several Courts of Appeals have held that, under such circumstances, a defendant can

be required to submit to a sanity examination conducted by the prosecution’s psychiatrist.”6 Id. at

465-67.

Petitioner claims his situation is different because he declined to answer offense-specific

questions and that responding to that line of questioning would have harmed his defense. This

concern was addressed by the Missouri Court of Appeals, noting in its opinion that, “the plain

language of § 552.030 RSMo. (Cum. Supp. 2011), explicitly prohibits the State from using any

information obtained during such examination to incriminate a defendant. See, e.g., State v.

Thompson, 985 S.W.2d 779, 786 (Mo. banc 1999) (“[S]tatements made to a psychiatric examiner

‘shall be admissible . . . only on the issue of his mental condition,’ and defendant is entitled to a

limiting instruction.”) (quoting State v. Copeland, 928 S.W.2d 828, 839 (Mo. banc 1999), overruled

on other grounds by Joy v. Morrison, 254 S.W.3d 885, 888-889 (Mo. banc 2008)).” Doc. [12-9] at

4.

The circumstances in this case, as well as those in Worthington, are not exactly

analogous to the facts in Estelle. However, on direct appeal, the Missouri Court of Appeals

6 (Citing United States v. Cohen, 530 F.2d 43, 47–48 (5th Cir. 1976), cert. denied, 429 U.S. 855

(1976); Karstetter v. Cardwell, 526 F.2d 1144, 1145 (9th Cir. 1975); United States v. Bohle, 445 F.2d

54, 66–67 (7th Cir. 1971); United States v. Weiser, 428 F.2d 932, 936 (2nd Cir. 1969), cert. denied,

402 U.S. 949 (1971); United States v. Albright, 388 F.2d 719, 724–725 (4th Cir. 1968); and Pope v.

United States, 372 F.2d 710, 720–721 (8th Cir. 1967) (en banc), vacated and remanded on other

grounds, 392 U.S. 651 (1968).

correctly noted the differences between the circumstances of Petitioner’s case and those in Estelle.

Because Petitioner placed his mental health at issue, he voluntarily subjected himself to a mental

examination by the State’s expert. Requiring Petitioner to answer offense-specific questions by an

expert to determine Petitioner’s criminal responsibility did not violate his rights to remain silent, to

be free from self-incrimination, and a fair trial. The trial court was within its discretion to deny

Petitioner’s request to present a defense of not guilty by reason of mental disease or defect when he

refused to answer offense-specific questions necessary for an expert to make a professional

determination regarding his criminal responsibility.7 This Court finds that the Missouri Court of

Appeal’s decision in this regard was neither contrary to, nor involved an unreasonable application

of, clearly established federal law, or resulted in a decision that was based on an unreasonable

determination of the facts. Petitioner’s claim in Ground One is denied.

Ground Two: Petitioner was denied his right to an impartial jury and equal protection

of the law under the Sixth and Fourteenth Amendments to the United States Constitution when

the trial court overruled his Batson challenge to the preemptory strikes of four jurors.

Petitioner contends the trial court erred in overruling his objections under Batson v.

Kentucky, 476 U.S. 79 (1986), to the State’s peremptory strikes of four African Americans from the

venire panel. The Equal Protection Clause of the United States Constitution prohibits parties from

using a peremptory challenge to strike a potential juror on the basis of race. Id. at 89. In Batson, the

Supreme Court described a three-step, burden-shifting process for challenging a peremptory strike

on this basis. Id. at 96-98. “First, the opponent of the peremptory challenge must establish a prima

7 “The trial court has considerable discretion in ruling upon requests to rely upon mental disease or defect as

a defense.” State v. Isa, 850 S.W.2d 876, 886 (Mo. banc 1993).

facie showing that the challenge is discriminatory.” United States v. Wolk, 337 F.3d 997, 1007 (8th

Cir. 2003). Second, “[t]he proponent of the peremptory challenge must then articulate a race-neutral

explanation for the challenge.” Id. Third, “[i]f a race-neutral explanation is offered, the challenger

must show that the explanation is a pretext for discrimination.” Id.

At trial, the State moved to strike jurors Lovings, Beavers, Scott, Bang, Bantle, Edgerson,

and the alternate, Guelker. Doc. [12-2] at 335. Petitioner raised Batson challenges with respect to

the proposed strikes of venire panel members Lovings, Beavers, Scott, and Edgerson because they

are all African Americans and “under the circumstances, these strikes are not racially neutral. They

are motivated by race.” Id. at 336. “[T]he record should reflect that the defendant in this case is of

African American descent. The record should also reflect that the alleged victim in this case is

Caucasian.” Id. at 336. The State offered the following race-neutral explanations for each strike: the

first panel member was struck because she had an outstanding warrant for her arrest, id. at 336; the

second because his stepson was in prison for assault, he was the victim of an unreported assault, and

at one point he indicated he was not sure he could follow the court’s instruction regarding voluntary

intoxication, id. at 343; and the last two panelists were struck due to the State’s concern they might

be biased because of their work experiences (one panelist worked for a criminal defense firm, id. at

344, and the other was a former city investigator, id. at 345). The trial court found the aforementioned

reasons to be racially neutral and denied the motions.

The Missouri Court of Appeals affirmed the trial court, finding that Petitioner had failed to

show that the State’s race-neutral explanations were pretextual and as such failed to meet his burden

of proof to establish the existence of purposeful discrimination. Doc. [12-9] at 6. The court found

that there were no similarly situated white venire members who were not also struck from the panel

and that the State’s explanations for each strike were arguably credible. Id. at 7 (citing United States

v. Granados, 596 F.3d 970, 975 (8th Cir. 2010) (holding outstanding warrant for arrest of potential

juror is valid, race-neutral reason for exercising a peremptory strike); State v. Clayton, 995 S.W.2d

468, 476 (Mo. banc 1999) (finding a juror’s equivocation about his ability to follow instructions is

an acceptable non-pretextual reason for strike); State v. Brown, 998 S.W.2d 531, 544 (Mo. banc

1999) (recognizing peremptory strike of a venireperson because of employment to be acceptable);

State v. Johnson, 207 S.W.3d 24, 37 (Mo. banc 2006) (“Employment is a valid race-neutral basis for

striking a prospective juror.”)). Id. Ultimately, the court determined that Petitioner failed to show

the prosecutor’s race-neutral explanations were pretextual and thereby failed to carry his burden of

proof to establish the existence of purposeful discrimination and to explain how or why the State’s

explanations for each strike were pretextual given the totality of the circumstances. Id. at 7-8. This

Court finds that the Missouri Court of Appeals decision in this regard was neither contrary to, nor

involved an unreasonable application of clearly established Federal law, or resulted in a decision

that was based on an unreasonable determination of the facts. Petitioner’s claim in Ground Two is

denied.

Ground Three: Petitioner was denied his rights to due process of law, a fundamentally

fair trial, and proof beyond a reasonable doubt under the Fifth and Fourteenth Amendments

to the United States Constitution when the trial court overruled his motion for judgment of

acquittal because the evidence was insufficient to demonstrate that he was guilty of first degree

murder and armed criminal action.

In reviewing the evidence to determine if it was insufficient to support the jury’s verdicts of

first-degree murder and armed criminal action, the Court must decide if “any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v.

Virginia, 443 U.S. 307, 319 (1979) (emphasis in original). The facts are reviewed de novo in the

light most favorable to the prosecution, allowing for reasonable inferences from those facts. Id.

First, Petitioner argues the State failed to prove beyond a reasonable doubt that he acted

with deliberation when he killed the victim, an element necessary to prove first-degree murder. See

Mo. Rev. Stat. § 565.020.1. “Deliberation” is defined as “cool reflection for any length of time no

matter how brief.” Mo. Rev. Stat. § 565.002(3). When viewed in the light most favorable to the

prosecution, the evidence at trial showed Defendant attacked the victim with a knife and with his

bare hands. He repeatedly beat her face and head, asphyxiated her, cut her forehead, and bit flesh

from her nose, cheek, and wrist. Doc. [12-2] at 515-26. Such evidence is more than sufficient to

prove deliberation. See Glass, 136 S.W.3d at 514 (“Evidence that [the victim] suffered multiple

wounds and the nature of her death – asphyxiation after a struggle absent evidence of any

provocation by the victim – strengthens the jury’s inference that [the defendant] deliberated.”).

Second, Petitioner claims that the evidence was insufficient to sustain his conviction for

armed criminal action because the definitive cause of death did not directly result from the use of

a dangerous instrument or deadly weapon. Armed criminal action only requires the jury to find the

defendant committed a felony with the “knowing assistance or aid of a dangerous instrument” not

that injury or death resulted from such use. Mo. Rev. Stat. § 571.015.1; MAI-CR 3d 332.02. The

evidence outlined above was sufficient to support the conclusion that Petitioner attacked the victim

with a knife, which is armed criminal action. See State v. Ware, 326 S.W.3d 512, 517 (Mo. Ct.

App. 2010) (quoting State v. Jackson, 865 S.W.2d 678, 680 (Mo. Ct. App. 1993)).

This Court finds that the Missouri Court of Appeals decision in this regard was neither

contrary to, nor involved an unreasonable application of clearly established Federal law, or resulted

in a decision that was based on an unreasonable determination of the facts. Petitioner’s claim in

Ground Three is denied.

B. Ineffective Assistance of Counsel Grounds

To prevail on an ineffective assistance of counsel claim, a petitioner must show that his

attorney’s performance fell below an objective standard of reasonableness and that he was

prejudiced thereby. Strickland v. Washington, 466 U.S. 668, 688 (1984). With respect to the first

Strickland prong, there is a strong presumption that counsel’s conduct falls within the wide range

of professionally reasonable assistance. Id. at 689. Thus, “counsel should be ‘strongly presumed to

have rendered adequate assistance and made all significant decisions in the exercise of reasonable

professional judgment,’” and the “burden to ‘show that counsel’s performance was deficient’ rests

squarely on the defendant.” Burt v. Titlow, 571 U.S. 12, 22–23 (2013) (quoting Strickland, 466

U.S. at 690). A reviewing court must refrain “from engaging in hindsight or second-guessing of

trial counsel’s strategic decisions.” Abernathy v. Hobbs, 748 F.3d 813, 816 (8th Cir. 2014)

(citation omitted). To establish the “prejudice” prong, the movant must show “that there is a

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

would have been different.” Strickland, 466 U.S. at 694. “Merely showing a conceivable effect is

not enough; a reasonable probability is one sufficient to undermine confidence in the outcome.”

Paulson v. Newton Corr. Facility, 773 F.3d 901, 904 (8th Cir. 2014) (citation omitted). Although

Strickland requires a showing of both deficient performance and prejudice, a “finding that no

prejudice exists is sufficient to conclude that counsel was not constitutionally ineffective—[courts]

need not first make a determination regarding deficiency.” Holder v. United States, 721 F.3d 979,

987 (8th Cir. 2013). “Taken together, AEDPA and Strickland establish a ‘doubly deferential

standard’ of review.” Williams v. Roper, 695 F.3d 825, 831 (8th Cir. 2012) (quoting Cullen v.

Pinholster, 563 U.S. 170, 202 (2011)).

First, under Strickland, the state court must make a predictive judgment about the

effect of the alleged deficiencies of counsel on the outcome of the trial, focusing

on whether it is ‘reasonably likely’ that the result would have been different absent

the errors. Strickland, 466 U.S. at 696. The Strickland prejudice standard is less

demanding than a more-probable-than-not standard, but the difference is ‘slight

and matters only in the rarest case.’ Harrington v. Richter, 562 U.S. 86, 112

(2011). To satisfy Strickland, the likelihood of a different result must be

‘substantial, not just conceivable.’ Id. Under AEDPA, [federal courts] must then

give substantial deference to the state court’s predictive judgment. So long as the

state court’s decision was not “contrary to” clearly established law, the remaining

question under the “unreasonable application” clause of § 2254(d) is whether the

state court’s determination under the Strickland standard is unreasonable, not

merely whether it is incorrect. Id. at 785. This standard was meant to be difficult

to meet, and “even a strong case for relief does not mean the state court’s contrary

conclusion was unreasonable.” Id. at 786.

Williams, 695 F.3d at 831. “When § 2254(d) applies, the question is not whether counsel’s

actions were reasonable. The question is whether there is any reasonable argument that counsel

satisfied Strickland’s deferential standard.” Richter, 562 U.S. at 105.

Ground Four: Petitioner was denied his rights to due process and effective assistance

of counsel under the Fifth, Sixth and Fourteenth Amendments to the United States

Constitution when trial counsel improperly advised him not to testify.

Petitioner was charged with first degree murder for the victim’s death. The victim’s body

had suffered multiple injuries consistent with beating, biting, smothering, and cutting. Doc. [12-

2] at 517-21, 523, 548. The medical examiner determined her cause of death to be from head

trauma and asphyxia. Id. at 536. Also, Petitioner did not deny arguing with the victim just before

her death, but instead claimed he acted in self-defense. Doc. [12-11] at 44-47. Petitioner chose

not to testify on his own behalf, relying in part on trial counsel's advice. He was ultimately found

guilty by a jury of first-degree murder and was sentenced to life without parole. During

Petitioner’s post-conviction hearing in state court, both he and his trial counsel testified as to why

he chose not to take the stand. Trial counsel testified that, prior to trial, they8 had practiced with

Petitioner, and both were concerned he might not be a good witness for himself, as he might open

himself up to impeachment, including "[prior incidences … of domestic abuse including attack’s

on women; one of which … he shot his ex-wife." Doc. [12-11] at 13-17, 20. Further, trial counsel

reiterated that, "despite the fact that [Petitioner’s] testimony may add something to the self-

defense argument, we felt that in the totality of the circumstances it had the potential of causing

far more damage than it would help." Id. at 17. Additionally, trial counsel had concerns about

Petitioner’s substance abuse history and that his voluntary intoxication prior to the attack might

severely complicate his self-defense theory. Id at 7-8, 14. Instead, trial counsel aimed to argue

"imperfect self-defense" by cross-examining the State's witnesses and attacking the State's

forensic evidence. Id. at 11-12, 16-17. Petitioner testified he was aware of the potential negatives

described by trial counsel if he decided to testify, and after discussing these pros and cons he

decided not to testify. Id. at 67, 68.

The state post-conviction court found trial counsel's advice to Petitioner not to testify was

reasonable, finding that “[Petitioner] made his own knowing and intelligent decision not to testify

at trial, based upon sound trial strategy used by defense counsel.” Doc. [12-12] at 45.9 Trial

counsel discussed the possibility of Petitioner testifying and even practiced testimony with him.

Id. After observation of the Petitioner’s practice testimony, and after reviewing the pros and cons

of Petitioner testifying, trial counsel “reached a well-reasoned and experienced opinion that

[Petitioner] ought not testify at trial.” Id. Trial counsel based their decision upon their belief that

Petitioner would not be a good witness, that his testimony and subsequent cross-examination

8 Petitioner had two trial counsel: Talmadge Newton and Chet Pleban.

9 The post-conviction court’s decision was affirmed by the Missouri Court of Appeals, Eastern District, ED103894

Memorandum 2017. Doc. [12-16].

would likely help the State more than the defense, and that his history of violence against women

would likely be exposed to the jury. Id. Further, the state post-conviction court found that trial

counsel was "highly credible" and their testimony to be truthful and reliable. Id. at 43. Petitioner’s

testimony, meanwhile, was found “to completely lack credibility” regarding his version of the

events. Id.

Petitioner has not established that he is entitled to relief under the “double deferential”

standard that applies to ineffective assistance claims. Williams, 695 F.3d at 831 (8th Cir. 2012). First,

he has failed to meet his burden to show that trial counsel’s strategic decision to not have him testify

was unreasonable. Second, he hasn’t shown that the decision of the Missouri courts was contrary to

or an unreasonable application of Strickland, or that the courts unreasonably applied Strickland to

the facts of this case. Therefore, Petitioner was not denied his rights to due process and effective

assistance of counsel when trial counsel advised Drisdel not to testify. Ground four is denied.

Ground Five: Petitioner was denied effective assistance of counsel, due process of the

law, and his right to a speedy trial in violation of the Sixth and Fourteenth Amendments to the

United States Constitution, when the trial counsel failed to move to dismiss the charges on the

basis of a violation of Petitioner’s right to speedy trial.

Petitioner claims in his amended petition that trial counsel was ineffective for not moving to

dismiss the criminal case against him on speedy trial grounds. Doc. [11] at 17-19. Petitioner

acknowledges that this issue was not raised in state court and claims the failure to do so was because

of the ineffective assistance of his post-conviction counsel. Id. at 19.

Missouri “prevent[s] individuals from pursuing claims of ineffective assistance of trial

counsel on direct appeal,” requiring instead that they make such claims in a post-conviction, “initial-

review collateral proceeding.” Franklin v. Hawley, 879 F.3d 307, 312 (8th Cir. 2018). Claims that

post-conviction counsel was ineffective are “categorically unreviewable” in Missouri. Barton v.

State, 486 S.W.3d 332, 336 (Mo. banc 2016). Nevertheless, a state prisoner can seek federal review

of a claim for habeas relief, even though it has been procedurally defaulted, by “demonstrat[ing]

cause for the default and actual prejudice as a result of the alleged violation of federal law, or

demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.”

Coleman v. Thompson, 501 U.S. 722, 750 (1991). However, under Coleman, “ineffective assistance

of counsel during state post-conviction proceedings cannot serve as cause to excuse factual or

procedural default.” Wooten v. Norris, 578 F.3d 767, 778 (8th Cir. 2009) (quoting Coleman, 501

U.S. at 750). A narrow exception has since been created in Martinez v. Ryan, 566 U.S. 1, 17 (2012)

where: “(1) the claim of ineffective assistance of trial counsel was a ‘substantial’ claim; (2) the

‘cause’ consisted of there being ‘no counsel’ or only ‘ineffective’ counsel during the state collateral

review proceeding; and (3) the state collateral review proceeding was the ‘initial’ review proceeding

with respect to the ‘ineffective-assistance-of-trial-counsel claim.’” Kemp v. Kelley, 924 F.3d 489,

499 (8th Cir. 2019) (quoting Dansby v. Hobbs, 766 F.3d 809, 834 (8th Cir. 2014)); see Martinez,

566 U.S. at 14.

Here, the state collateral review proceeding was the initial review proceeding with respect to

Petitioner’s ineffective assistance of trial counsel claim. His claim was not raised in the state

collateral review proceeding, and as such, was procedurally defaulted. In order to overcome the

procedural default Petitioner must also show that: (1) his claim of ineffective assistance of trial

counsel was “substantial,” and (2) the “cause” for the default was the ineffective assistance of post-

conviction counsel during the initial-review collateral proceeding. Kemp, 924 F.3d at 499. To show

that Petitioner has presented a substantial claim of ineffective assistance of trial counsel, he must

demonstrate that his claim has some merit. Martinez, 566 U.S. at 14.

Petitioner claims that trial counsel was ineffective due to their failure to assert his right to a

speedy trial and that state post-conviction counsel was ineffective for not asserting an ineffective

assistance of trial counsel claim with regard to trial counsel’s failure to assert the speedy trial claim.

It is Petitioner’s burden to show his claim - that trial counsel was ineffective for not asserting a

speedy trial claim - is substantial by demonstrating his claim has some merit. Both Missouri and the

federal courts use the same four-factor test to review speedy trial claims. See Barker v. Wingo, 407

U.S. 514, 530 (1972); Cummings v. State, 535 S.W.3d 410, 417-21 (Mo. Ct. App. 2017). These

factors are the length of the delay, the reason for delay, the defendant’s assertion of his right, and

prejudice to the defendant. Barker, 407 U.S. at 417.

Provided below is the entirety of the supporting facts provided in Petitioner’s amended

petition, Doc. [11], regarding Ground Five:

Supporting facts: The State filed its criminal complaint against

Drisdel on June 6, 2005. Drisdel was denied bond. Drisdel then

sat in the St. Louis City Justice for almost seven years until he

went to trial on May 15, 2012. A review of the docket indicates

a number of continuances that were requested by the trial court

but it is unclear why the case was delayed for almost seven

years. Although trial counsel did depose a number of witnesses,

the facts of the case were not complex and in no way warranted

such an unconstitutional delay. During the time Drisdel was in

pre-trial custody he was given anti-psychotic drugs that

affected his reasoning and decision-making. Drisdel did not

request trial counsel to file a motion for speedy trial because he

was unaware that one even existed. Trial counsel did not advise

Drisdel that he had a right to a speedy trial. Given the [sic]

Drisdel was heavily medicated throughout his pretrial custody,

he relied solely upon his attorney.

Petitioner has provided the Court with nothing more than conclusory allegations in his

amended petition to demonstrate that his claim has merit. “In order to warrant relief, or, as an initial

matter, even an evidentiary hearing, a habeas corpus petitioner must allege sufficient facts to

establish a constitutional claim. Mere conclusory allegations will not suffice.” Wiggins v. Lockhart,

825 F.2d 1237, 1238 (8th Cir. 1987). See also Henney v. Berghuis, No. 1:06-CV-149, 2006 WL

1008864, at *4 (W.D. Mich. Apr. 14, 2006); Champs v. Roy, No. Civ. 14-995, 2015 WL 691416, at

*7 (D. Minn. Feb. 18, 2015). Petitioner fails to substantiate his conclusory allegations with any facts

whatsoever from the record. Therefore, he has not met his burden under the Martinez exception to

show that his claim of ineffective assistance of trial counsel (for not setting forth a speedy trial claim)

has merit under the Martinez standard. On this basis, Ground Five will be denied.

Despite Petitioner’s conclusory allegations and failure to provide sufficient facts to establish

his claim has merit (and thus a substantial claim), this Court’s review of the record indicates that

even if Petitioner did demonstrate he had a substantial claim, he would not have been able to show

that the cause for the default was the ineffective assistance of post-conviction counsel. That is

because it would not be objectively reasonable to fault post-conviction counsel for claiming trial

counsel was ineffective for not bringing a speedy trial claim, when the record shows that the bulk of

trial delay related to evaluation of Petitioner’s mental competency to stand trial and his refusal to

cooperate in the process.

Petitioner’s criminal trial record indicates that an approximate seven-year period elapsed

between the time Petitioner was charged and his jury trial commenced. The docket sheet is replete

with notices, motions, evaluations, hearings, status conferences, briefing, orders, and continuances

almost exclusively relating to Petitioner’s mental competency and his refusal to cooperate in the

process.10

10 It is also noteworthy that the docket sheet does not reflect that Petitioner ever objected to any of the continuances in

the case and most were either requested by him or were joint requests with the State.

Petitioner was charged with murder in the first degree and armed criminal action in July of

2005. Doc. [12-4] at 21. Petitioner then requested and was granted two continuances. Id. at 18. His

case was set for initial appearance on August 15, 2005. Id. The docket sheet then stated, “August 15,

2005, Hearing Scheduled Continued by Defendant 11/17/05.” Id. On November 7, 2005, the docket

sheet stated, “Hearing Scheduled Continued by Defendant 03/6/2006.” Id. On March 6, 2006,

Petitioner filed a notice of intent to rely on the defense of mental disease or defect. Doc. [12-4] at

24. He procured an expert, Dr. Steven Stromsdorfer, to examine him and prepare a report. Doc. [12-

5] at 24. An order is issued by the trial court on March 22, 2006, stating, “Pretrial conference was

held … at Defts. request caused is moved off the 8-14-06 trial docket and scheduled for a pretrial

conference on 6-13-06.” Doc. [12-4] at 18. On August 8, 2006, the docket sheet stated, “Court grants

at parties consent a continuance for further status updates to Tuesday October 17, 2006.” Id. at 17.

On October 17, 2006, the docket sheet indicates that Petitioner had not yet received a report from

his own mental health expert, and the case was continued to December 13, 2006. Id. at 16. On

December 13, 2006, the trial court assigned the case to a trial division and set it for a jury trial on

March 5, 2007. Id. The docket sheet then reflects status conferences with the parties, a notice to take

deposition, a joint request for continuance, court orders continuing the case, and a motion for

withdrawal of counsel. Id. at 15-16. On April 17, 2008, Petitioner reasserted his intent to rely on the

defense of mental disease or defect. Id. On September 8, 2008, Dr. Stromsdorfer provided his initial

report wherein he did not find that Petitioner suffered from a mental disease or defect. Doc. [12-4]

at 28. (emphasis added). On November 20, 2008 and December 17, 2008, the parties filed joint

continuances, and in January of 2009 a jury trial was scheduled for October 5, 2009. Doc. [12-4] at

14. On October 1, 2009, Petitioner filed a motion to dismiss the indictment Id. Soon thereafter,

Petitioner’s counsel informed the state that Dr. Stromsdorfer had developed a revised diagnosis.

Doc. [12-3] at 5. On October 5, 2009, the State filed a motion to exclude Petitioner’s psychiatric

evidence due to the revised diagnosis. Id. at 13. The trial court issued an order on October 6, 2009,

stating, “Cause continued for the defendant, due to defendant’s endorsed psychiatrist having arrived

at a revised diagnosis … defense psychiatrist Dr. Steve Stromsdorfer, to prepare and provide a

written report of his diagnosis no later than November 16, 2009.” Id. Dr. Stromdorfer then provided

a “supplemental report” finding that Petitioner did suffer from a mental disease or defect which may

provide him with a defense. Doc. [12-4] at 28. On November 23, 2009, the State objected to the

findings of the initial and “supplemental” reports and requests an evaluation be done by another

psychiatrist or psychologist, as allowed under Mo. Rev. Stat. § 552.020.6 and § 552.030 Id. at 29.

The trial court sustained the state’s motion and ordered another mental examination of Petitioner.

Doc. [12-4] at 13. In January of 2010, the case was set for a status conference on March 30, 2010.

Id. After a few more joint continuances, Dr. Richard Scott filed his report and findings with the trial

court in April of 2010. Doc. [12-4] at 33. Petitioner refused to answer questions regarding the day

of and immediately after the alleged offenses, causing Dr. Scott to defer on the issue of criminal

responsibility. Doc. [12-3] at 6. On March 23, 2011, the parties appeared for a status conference.

Doc. [12-4] at 10. At some point, the State made an oral motion to the trial court to compel Petitioner

to answer offense-specific questions during a subsequent evaluation by Dr. Scott. Doc. [12-3] at 4.

The trial court set an evidentiary hearing for April 20, 2011. Doc. [12-4] at 10. On April 20, 2011, a

hearing was held on the motion to compel, and the trial court requested that the parties prepare

memorandums on the issue of Petitioner’s psychological state. Id. Dr. Scott testified at the hearing

that he was unable to determine Petitioner’s criminal responsibility without Petitioner’s cooperation

in discussing the events and circumstances at the time of the alleged conduct. Doc. [12-4] at 31. On

July 14, 2011, after briefing was filed, the trial court issued an order granting the State’s motion to

compel, and ordering Petitioner to participate in the criminal responsibility portion of another

evaluation by providing his account of the alleged offenses to Dr. Scott. Doc. [12-4] at 30, 33. The

trial court warned Petitioner that “[f]ailure by the defendant to comply with this court’s order will

result in further sanctions by the court including but not limited to the absolute bar by the defendant

of the defense of mental disease or defect.” Doc. [12-4] at 32. Dr. Scott attempted to interview

Petitioner a second time on August 19, 2011. Doc. [12-4] at 33. On August 25, 2011, Dr. Scott

provided the court with a letter indicating that Petitioner declined to participate in the evaluation.

Doc. [12-4]. After more hearings and pretrial preparation, the case proceeded to trial in May of 2012.

Doc. [12-4] at 8. Petitioner was not allowed to present the defense of mental disease or defect.

The delay in this case was almost exclusively due to Petitioner’s desire to assert the defense

of mental disease or defect. As illustrated above, multiple continuances, evaluations, reports, status

conferences, hearings, motions, briefing, and orders solely concerned Petitioner’s competency to

stand trial. In essence, Petitioner claims he should have been allowed to assert a mental disease or

defect defense, yet the time expended to explore his mental competency, including a lot of time

directly related to his refusal to cooperate in the process, should now be weighed in favor of his

ineffective assistance of counsel claims.

Different reasons for delay are to be assigned different weights when examining a speedy

trial claim. Barker, 407 U.S. at 531. “Delays attributable to the defendant weigh heavily against the

defendant.” Cummings v. State, 535 S.W.3d 410, 418 (Mo. Ct. App. 2017) (quoting State v.

Greenlee, 327 S.W.3d 602, 612 (Mo. Ct. App. 2010)). This includes time spent for mental

examinations, at least where the accused himself places his mental fitness to proceed to stand trial

at issue. State v. Smith, 389 S.W.3d 194 (Mo. Ct. App. 2012). Here, the length of delay tips heavily

against Petitioner. Petitioner claims in his amended petition that “[a] review of the docket indicates

a number of continuances that were requested by the trial court but it is unclear why the case was

delayed for almost seven years.” Doc. [11]. The record outlined above makes it abundantly clear

that Petitioner’s assertion of a mental disease or defect claim, and his refusal to cooperate in the

process to explore it was the predominant cause of trial delay. “‘It is well established that the Due

Process Clause of the Fourteenth Amendment prohibits the criminal prosecution of a defendant who

is not competent to stand trial.’” Reynolds v. Norris, 86 F.3d 796, 799-800 (8th Cir. 1996). Due to

the conflicting reports from Petitioner’s expert and Petitioner’s unwillingness to cooperate in the

subsequent court-ordered examination, the trial court was given little choice other than to proceed

with the exploration into Petitioner’s mental competency, or risk causing a mentally incompetent

person to stand trial in violation of his due process rights.

Because Petitioner’s conclusory allegations and failure to provide sufficient facts to

establish his claim has merit (and thus a substantial claim), Ground Five is denied. Even if Petitioner

had demonstrated a substantial claim, he would not have been able to show that the cause for the

default was the ineffective assistance of post-conviction counsel. It would not have been objectively

reasonable to fault post-conviction counsel for claiming trial counsel was ineffective for not bringing

a speedy trial claim when the record showed that the bulk of trial delay was related to evaluation of

Petitioner’s mental competency to stand trial and his refusal to cooperate in the process.

Accordingly,

IT IS HEREBY ORDERED that the petition of Leonardo Drisdel for writ of habeas corpus

pursuant to 28 U.S.C. § 2254, Doc. [1], is DENIED as moot.

IT IS FURTHER ORDERED that the amended petition of Leonardo Drisdel for writ of

habeas corpus pursuant to 28 U.S.C. § 2254, Doc. [11], is DENIED.

IT IS FINALLY ORDERED that the Petitioner has not made a substantial showing of a

denial of a constitutional right and this Court will not grant a certificate of appealability.

A separate judgment in accordance with the Memorandum and Order is entered this same

date.

Dated this 31% day of March, 2021 TE

MATTHEW T. SCHELP

UNITED STATES DISTRICT JUDGE

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