Porter v. Jason Lewis

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

SOUTHEASTERN DIVISION

SYLVESTER B. PORTER, )

)

Petitioner, )

)

vs. ) Case No: 1:18CV226 HEA

)

JASON LEWIS, )

)

Respondent. )

OPINION, MEMORANDUM AND ORDER

Petitioner filed a pro se Petition for Writ of Habeas Corpus under 28 U.S.C.

§ 2254 [Doc. No.1] on September 13, 2018. Respondent filed a Response to the

Court’s Order to Show Cause Why Relief Should Not be Granted [Doc. No. 16] on

February 21, 2019. Pursuant to Rule 8 of the Rules Governing Section 2254 Cases

in the United States District Courts, this Court has determined that there are no

issues asserted that give rise to an evidentiary hearing and therefore one is not

warranted. For the reasons explained below, the Response to the Order to Show

Cause Why Relief Should not be Granted is well taken and the petition will be

dismissed.

Procedural Background

Petitioner was found guilty of two counts of first-degree statutory sodomy

and one count of first-degree child molestation. The state trial court granted

Petitioner’s motion for acquittal as to the first-degree child molestation. Petitioner

was sentenced to two concurrent sentences of 25 years’ imprisonment in the

Missouri Department of Corrections. Petitioner appealed his convictions and

sentences to the Missouri Appellate and Supreme Courts. The Missouri Supreme

Court summarized the relevant facts in its Opinion affirming the judgment:

Porter managed a rooming house where A.L. rented a room for herself and

her three-year-old daughter, K. W. Porter, also known as "J-Money," had a

room at the boarding house.

One weekend, K.W.'s grandmother took care of K.W. while A.L.

was away. Grandmother awakened from a nap and discovered

that K.W. was gone. Grandmother found K.W. in Porter's room.

K.W.'s pants were off, and Porter was shirtless. Porter's head

was between K.W.'s legs.

Grandmother removed K.W. from Porter's room. K.W. told Grandmother

that Porter was "sniffing around down there" and "messing with her

bottom part." When A.L. returned approximately one-half hour after the

incident, K.W. told A.L. that Porter touched her "kookoo," which was

K.W.'s word for her vagina. A.L. then confronted Porter, who denied

touching K.W. K.W. overheard Porter's denial and told him "yes you did,

you touched my kookoo." A.L. called the police.

Grandmother later described Porter's actions to a children's division

employee in terms of performing oral sex on K.W. Approximately two

weeks later, K.W. told a forensic interviewer at the Child Advocacy

Center (CAC) that Porter put his hand in her private part, touched her

private part with his tongue, and put his private part on her face near her

eye. The interview was recorded and admitted into evidence at trial.

The State charged Porter with two counts of first-degree statutory

sodomy for touching K.W.'s vagina with his hand (Count I) and with his

tongue (Count II). The State also charged Porter with one count of first-

degree child molestation for touching K.W.'s head with his penis (Count

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III).

K.W. was five years old when she testified at Porter's trial. K.W. testified

that Porter touched her private part with his hand but not with any other

part of his body.

K.W. also testified as follows:

Q: K.W. can you say whether J-Money really touched you?

A: Huh-huh.

Q: Did he really touch you or not?

A: Not.

Q: He didn't touch you?

A: (Shakes head.)

Q: Or he did touch you?

A: He did.

Q: He did.

A: (Nods head.)

A jury convicted Porter on all three counts. Porter filed motions for

judgment of acquittal on all three counts on grounds that there was insufficient

evidence to convict because K.W.'s testimony was contradictory and

uncorroborated. The circuit court sustained Porter's motion as to the child

molestation charge (Count III) but overruled the motions as to the statutory

sodomy charges (Counts I and II). The circuit court sentenced Porter to two

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concurrent sentences of 25 years in prison.

Petitioner raised two points on appeal to the Missouri Supreme Court.

He asserted that there was insufficient evidence to support his convictions

on Counts I and II because K.W.'s testimony was inherently contradictory

and lacked corroboration.

Petitioner also filed a post-conviction Rule 29.15 Motion. The

Motion Court denied the motion, as did the Missouri Court of Appeals.

Standard of Review

The Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. §

2254 (“AEDPA”) applies to all petitions for habeas relief filed by state prisoners

after the statute’s effective date of April 24, 1996. When reviewing a claim that has

been decided on the merits by a state court, AEDPA limits the scope of judicial

review in a habeas proceeding as follows:

An application for writ of habeas corpus on behalf of a person in

custody pursuant to the judgment of a state court shall not be granted

with respect to any claim that was adjudicated on the merits in state

court proceedings unless the adjudication of the claim —

(1) resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established federal law,

as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented

in the state court proceeding.

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28 U.S.C. § 2254(d).

In construing AEDPA, the United States Supreme Court, in Williams v.

Taylor, held that:

Under the ‘contrary to’ clause, a federal habeas court may grant the writ

if the state court arrives at a conclusion opposite to that reached by [the

U.S. Supreme Court] on a question of law or if the state court decides

a case differently than [the U.S. Supreme Court] has on a set of

materially indistinguishable facts. Under the ‘unreasonable application’

clause, a federal habeas court may grant the writ if the state court

identifies the correct governing legal principle from [the U.S. Supreme

Court’s] decisions but unreasonably applies that principle to the facts

of the prisoner’s case.

529 U.S. 362, 412–13 (2000). Furthermore, the Williams Court held that “a federal

habeas court may not issue the writ simply because that court concludes in its

independent judgment that the relevant state court decision applied clearly

established federal law erroneously or incorrectly.” 529 U.S. at 409.

A state court decision must be left undisturbed unless the decision was

contrary to or involved an unreasonable application of clearly established federal

law as determined by the Supreme Court of the United States, or the decision was

based on an unreasonable determination of the facts in light of the evidence

presented in state court. Colvin v. Taylor, 324 F.3d 583, 586-87 (8th Cir. 2003).

A decision is contrary to United States Supreme Court precedent if it decides

a case based on a different rule of law than the rule dictated by United States

Supreme Court precedent, or it decides a case differently than the United States

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Supreme Court did on materially indistinguishable facts. Id. A decision may only

be overturned, as an unreasonable application of clearly established United States

Supreme Court precedent, if the decision is both wrong and an objectively

unreasonable interpretation or application of United States Supreme Court

precedent. Id. A federal habeas court may not disturb an objectively reasonable

state court decision on a question of federal law even if the decision is, in the

federal court’s view, wrong under Eighth Circuit precedent, and even if the habeas

court would have decided the case differently on a clean slate. Id. State court

factual determinations are presumed to be correct and this presumption can only be

rebutted by clear and convincing evidence. 28 U.S.C. §2254(e)(1).

Statute of Limitations

Congress provides a one-year window in which a habeas applicant can file a

petition for writ of habeas corpus. That window opens at the conclusion of direct

review. The window closes a year later. Failure to file within that one-year

window requires the court to dismiss the petition for writ of habeas corpus. 28

U.S.C. §2244(d) (1) (A); See Cross-Bey v. Gammon, 322 F.3d 1012 (8th Cir.),

cert. denied, 540 U.S. 971 (2003). If an inmate does not seek a writ of certiorari on

direct review, direct review concludes when the time limit for seeking further

review expires. Gonzales v. Thaler, 132 S. Ct. 641, 653-54 (2012). Under Missouri

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Supreme Court Rule 30.01, Rule 30.03, Rule 81.04, and Rule 81.08, the time limit

for filing a notice of appeal is ten days after sentencing.

Ineffective Assistance of Counsel

To prevail on his ineffective assistance of counsel claims, Petitioner must

show that his attorney's performance fell below an objective standard of

reasonableness and that he was prejudiced thereby. See 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 fell 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) (quotation marks and citation omitted); see also

Strickland, 466 U.S. at 689 (noting that a petitioner must show that the challenged

action was not part of a sound trial strategy); Abernathy v. Hobbs, 748 F.3d 813,

816 (8th Cir. 2014) (explaining that reviewing courts must refrain “from engaging

in hindsight or second-guessing of trial counsel's strategic decisions”) (citation

omitted)).

To establish “prejudice,” the petitioner must show “that there is a reasonable

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

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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 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 take 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. 696. ... 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. [Harrington v. Richter, 562

U.S. 86, 112, 101 (2011)]. 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 [102.]

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Williams, 695 F.3d at 831-32. “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.

In this context, a state court's findings of fact made in the course of deciding

a claim of ineffective assistance of counsel are presumed to be correct. Odem v.

Hopkins, 382 F.3d 846, 849 (8th Cir. 2004).

Procedural Default

To preserve a claim for federal habeas review, a state prisoner “must present

that claim to the state court and allow that court an opportunity to address [his or

her] claim.” Moore-El v. Luebbers, 446 F.3d 890, 896 (8th Cir. 2006) (citing

Coleman v. Thompson, 501 U.S. 722, 731-32 (1991)). “Where a petitioner fails to

follow applicable state procedural rules, any claims not properly raised before the

state court are procedurally defaulted.” Id. The federal habeas court will consider a

procedurally defaulted claim only “where the petitioner can establish either cause

for the default and actual prejudice, or that the default will result in a fundamental

miscarriage of justice.” Id. (citing Sawyer v. Whitley, 505 U.S. 333, 338-39

(1992)). To demonstrate cause, a petitioner must show that “some objective factor

external to the defense impeded counsel’s efforts to comply with the State’s

procedural rule.” Murray v. Carrier, 477 U.S. 478, 488 (1986). To establish

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prejudice, “[t]he habeas petitioner must show ‘not merely that the errors at...trial

created a possibility of prejudice, but that they worked to his actual and substantial

disadvantage, infecting his entire trial with error of constitutional dimensions.’”

Id.at 494 (quoting United States v. Frady, 456 U.S. 152, 170 (1982)). Lastly, in

order to assert the fundamental miscarriage of justice exception, a petitioner must

“present new evidence that affirmatively demonstrates that he is innocent of the

crime for which he was convicted.” Murphy v. King, 652 F.3d 845, 850 (8th Cir.

2011) (quoting Abdi v. Hatch, 450 F.3d 334, 338 (8th Cir. 2006)).

Discussion

Review under 28 U.S.C. § 2254 is a review to determine whether a person

“is in custody in violation of the Constitution or laws or treaties of the United

States.” 28 U.S.C. § 2254(a). Here, Plaintiff states eight grounds for relief

Grounds One and Two – Insufficient evidence

In Grounds One and Two, Petitioner argues the testimony was insufficient

because of inconsistencies in the witnesses’ testimony and uncorroborated

testimony.

The Missouri Supreme Court concluded that the evidence at trial was

sufficient for the jury to conclude that Petitioner committed the crimes.

Porter asserts that K.W.'s testimony regarding whether Porter touched her

genitals with his hand or his tongue was so contradictory and inconsistent that

it cannot constitute substantive, probative evidence. This argument is

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foreclosed by this Court's abolition of the corroboration rule and the

destructive contradictions doctrine. Instead, this Court reviews the record to

determine whether there is sufficient evidence from which a reasonable jury

could have found the defendant guilty beyond a reasonable doubt.

Chaney, 967 S.W.2d at 52.

As Porter notes, there were inconsistencies in K.W.'s trial testimony and

out-of court statements. During K.W.'s redirect examination testimony, she

initially denied that Porter touched her vagina with his hand. The

prosecutor asked K.W. again if Porter had touched her. K.W. then affirmed

that Porter had touched her. Porter asserts that K.W.'s credibility is further

damaged by K.W.'s affirmative response to a question asking whether

K.W.'s grandmother "told her to say those things" about Porter.

With respect to Count II, Porter asserts the only evidence the State

presented regarding Count II was K.W.'s out-of-court statement to the

forensic interviewer that Porter touched her private part with his tongue.

Porter notes that this statement contradicts K.W.'s testimony that Porter

only touched her vagina with his hand.

The inconsistencies in K.W.'s testimony do not render the evidence

insufficient. K.W.'s testimony that Porter had touched her genitals with his

hand was consistent with out-of-court statements admitted into evidence

pursuant to section 491. 075. For instance, K.W. told the CAC interviewer

that Porter had touched her vagina with his hand. Although she indicated

later in the interview that Porter had touched her genitals only with his

tongue, the jury was in the best position to resolve credibility issues. This

Court previously has recognized that the trier of fact is generally in the

best position to resolve inconsistent testimony by the child victim of a sex

crime. State v. Silvey, 894 S.W.2d 662,673 (Mo. bane 1995). In addition,

there was evidence that K.W. told A.L that Porter had touched her and

contemporaneously refuted Porter's denial by stating that Porter had in fact

touched her vagina.

The jury resolved the inconsistencies in the context of evidence that placed

K.W., without pants, alone with a shirtless Porter in his room with his head

between her legs, engaging in activity that Grandmother witnessed and

described in terms consistent with oral sex. When the evidence is viewed,

as it must be, in the light most favorable to the State, this Court concludes

that there was sufficient evidence to permit a rational fact finder to find

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beyond a reasonable doubt that Porter touched K.W.'s genitals with his

hand and with his tongue. There is sufficient evidence to support Porter's

convictions for statutory sodomy.

(Respondent’s Exhibit W, pp. 9-10.) The Supreme Court set out the applicable

law and the elements of the crime. It precisely applied the federal standard of

sufficiency of the evidence under Jackson v. Virginia, 443 U.S. 307, 319 (1979).

Petitioner fails to show that the reasoning of the Missouri Supreme Court was

unreasonable or contrary to established federal law. The Court articulated its

rationale based upon applicable law. Grounds One and Two are denied.

Ground Three: Trial Court erred in allowing the jury to have access to

the Victim’s videotaped forensic interview during deliberations

In Ground Three, Petitioner alleges the trial court erred in allowing the jury

to have access to the victim’s videotaped forensic interview. The Missouri

Supreme Court analyzed this claim:

In his final point, Porter asserts that the trial court erred in allowing the jury

unrestricted access to the videotaped CAC interview of K.W. during its

deliberations. Porter contends the trial court should have controlled the jury's

exposure to the videotape rather than allowing it to have unlimited access to

the tapes. Porter argues that allowing the jury to have unlimited access to the

tapes creates a presumption that the jury gave undue weight to the evidence

on the tapes.

The record does not demonstrate whether Porter objected to the trial court's

decision to permit the jury to view the tapes. Instead, the record reflects that

the jury sent a note to the judge asking for "all defense and state exhibits[,]

videos, lab reports, etc." and that the judge provided the jury with "the

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items requested." Further, the record shows that, during closing argument,

Porter asked the jury to view the tapes. Porter, therefore, had an opportunity

to raise the issue of extent of the jury's access to the tapes. The situation in

this case is, therefore, similar to State v. Naucke, 829 S.W.2d 445 (Mo.

bane 1992), in which this Court affirmed a sodomy conviction and rejected

the defendant's argument that the trial court erred by allowing the jury to

view a videotape of the juvenile victim's interview by sexual abuse

specialists. In Naucke, the record was insufficient to determine whether the

defendant objected to tapes, so this Court concluded that "in the absence of

any record showing what occurred at the trial level related to this claimed

error, the Court on appeal is obligated to affirm the trial court." Id. at 460.

Porter's claim, like the one in Naucke, is both unpreserved and speculative

and, as such, cannot serve as a basis for reversing the judgment of

conviction.

(Respondent’s Exhibit W, pp. 11-12).

The Supreme Court found that Petitioner had not preserved through

objection releasing the tape to the jury. Indeed, counsel for Petitioner encouraged

the jury to watch the DVD and ask for the interview. No error occurred, and the

Missouri Supreme Court so found.

Nor can Petitioner establish any prejudice from allowing the video to be sent

to the jury. It had already been played to the jury during the trial. Petitioner has

failed to establish how the Missouri Supreme Court’s finding is contrary to

established federal law. Ground Three is denied.

Grounds Fours, five, six, and seven: Ineffective assistance of counsel

In Grounds four and five, Petitioner claims counsel was ineffective for

failing to effectively impeach the victim’s grandmother with her prior inconsistent

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statement and where she lived in October 2010. Both claims were raised in

Petitioner’s post-conviction proceeding. They were rejected by the Motion court

as meritless. Petitioner only raised ground four in his appeal of this ruling.

Ground five is therefore procedurally defaulted.

With respect to Ground Four, the motion court found this argument without

merit because counsel did in fact cross examine grandmother about the

inconsistencies. As Respondent points out, counsel argued in closing the

inconsistent trial testimony and deposition testimony.

The Missouri Court of Appeals found counsel was not ineffective because of

her questioning of grandmother regarding grandmother’s inconsistent testimony.

While counsel did not specifically recall a strategic decision for not having

grandmother read her deposition testimony, the Court concluded that counsel could

have decided not to continue to question grandmother because to do so might allow

grandmother to further clarify which could be detrimental to Petitioner.

Likewise, the failure to remember any strategic strategy does not render

counsel’s representation ineffective. The Missouri Supreme Court’s conclusion is

neither an unreasonable interpretation nor contrary to clearly established federal

law. See Fretwell v. Norris, 133 F.3d 621, 623-24 (8th Cir. 1998). The Court must

ascertain

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[w]hether trial counsel performed so deficiently “that counsel was not

functioning as the ‘counsel’ guaranteed [Fretwell] by the Sixth

Amendment.” 466 U.S. at 687, 104 S.Ct. at 2064. In addressing that

question,

“[j]udicial scrutiny of counsel's performance must be highly

deferential. It is all too tempting for a defendant to second-guess

counsel's assistance after conviction or adverse sentence, and it is all

too easy for a court, examining counsel's defense after it has proved

unsuccessful, to conclude that a particular act or omission of counsel

was unreasonable.”

466 U.S. at 689, 104 S.Ct. at 2065 (citations omitted). The district

court lost sight of this critical admonition, which is perhaps not

surprising given the way the evidentiary hearing progressed. Fretwell

first presented his side of the ineffective assistance question but did

not call trial counsel as a witness. The State called counsel as its only

witness. The trial had taken place nine years earlier, and counsel's

files were later destroyed in a flood. Yet counsel testified at the

hearing without reviewing the extensive state court record, which is

part of our record on appeal. Because he was unprepared, counsel was

unable to explain, or even recall, the reasons underlying much of his

performance before and during trial. The district court repeatedly used

counsel's inability to recall as establishing lack of competent

performance. This violates the presumption that attorneys perform

reasonably:

A fair assessment of attorney performance requires that every effort be made

to eliminate the distorting effects of hindsight, to reconstruct the

circumstances of counsel's challenged conduct, and to evaluate the conduct

from counsel's perspective at the time. Because of the difficulties inherent in

making the evaluation, a court must indulge a strong presumption that

counsel's conduct falls within the wide range of reasonable professional

assistance; that is, the defendant must overcome the presumption that, under

the circumstances, the challenged action ‘might be considered sound trial

strategy.’

Strickland, 466 U.S. at 689, 104 S.Ct. at 2065; see Brant v. Nix, 58 F.3d 346

(8th Cir.1995). To nullify the distorting effects of hindsight, and to give this

presumption its full weight, we will examine counsel's trial tactics and

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strategy as revealed by the state court record because that record best reflects

“counsel's perspective at the time.”

Fretwell v. Norris, 133 F.3d 621, 623–24 (8th Cir. 1998). Ground Four is denied.

Ground Six: Ineffective assistance of counsel for failing impeach

Mother

Petitioner only raised ground six(a) in his post-conviction appeal. Ground

6(b) is therefore procedurally defaulted.

Petitioner argues in Ground Six(a) that counsel was ineffective for failing to

impeach mother with her statement that victim denied Petitioner touched her. The

Missouri Appellate Court addressed this issue and concluded it was without merit.

Using the Strickland standard, the Court found that even though counsel did not

specifically ask mother about this statement, counsel did cross-examine mother

about inconsistencies in her prior statements and argued the inconsistencies in her

closing arguments. The Court found not asking about the specific statement was

presumably a matter of trial strategy. The fact that counsel could not specifically

remember why she did not ask about this specific statement was not enough to

overcome the presumption. Again, this conclusion is not contrary to clearly

established federal law. Id.

As Respondent correctly observes, Petitioner can show no prejudice for

counsel’s decision not to ask about the specific statement. Counsel did elicit

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testimony from Davis that mother told Davis victim told mother that grandmother

had told victim to say Petitioner touched her.

Ground Six(c)-Mother’s rental agreement. Petitioner did not raise any

questions to counsel at the motion hearing regarding the rental agreement and the

motion court concluded it was a collateral matter. Petitioner has failed to

demonstrate how the lack of questioning about the rental agreement prejudiced

him. Ground Six(c) is denied.

Ground Seven: Counsel’s failure to Object and Request Mistrial during

State’s Closing Argument

Petitioner claims counsel was ineffective for failing to object to the State’s

comparison of Petitioner with a lion stalking and attacking a zebra. Although

Petitioner raised this claim in the Motion Court, he failed to raise it in his post-

conviction appeal. The claim is procedurally defaulted.

Ground Eight: Ineffective Assistance of Direct Appeal Counsel

Petitioner claims his direct appeal counsel was ineffective for not asserting

trial court error in admitting victim’s statements provided to Dr. Kelly Caddell

from a social worker before Dr. Caddell’s examination. Petitioner raised this claim

in his post-conviction motion but did not raise it in his post-conviction appeal.

This claim is therefore procedurally defaulted.

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Petitioner knew of all the procedurally defaulted claims but did not raise

them in the proper courts. He has not presented any reliable new evidence that he

is actually innocent of the crimes.

Federal habeas courts reviewing convictions from state courts will not

consider claims that a state court refused to hear based on an adequate and

independent state procedural ground. A state prisoner may be able to

overcome this bar, however, if he can establish “cause” to excuse the

procedural default and demonstrate that he suffered actual prejudice from

the alleged error. An attorney error does not qualify as “cause” to excuse a

procedural default unless the error amounted to constitutionally ineffective

assistance of counsel. Because a prisoner does not have a constitutional right

to counsel in state postconviction proceedings, ineffective assistance in those

proceedings does not qualify as cause to excuse a procedural default. See

Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640

(1991).

In Martinez v. Ryan, 566 U.S. 1, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012),

and Trevino v. Thaler, 569 U.S. 413, 133 S.Ct. 1911, 185 L.Ed.2d 1044

(2013), this Court announced a narrow exception to Coleman 's general rule.

That exception treats ineffective assistance by a prisoner's state

postconviction counsel as cause to overcome the default of a single claim—

ineffective assistance of trial counsel—in a single context—where the State

effectively requires a defendant to bring that claim in state postconviction

proceedings rather *2063 than on direct appeal. The question in this case is

whether we should extend that exception to allow federal courts to consider

a different kind of defaulted claim—ineffective assistance of appellate

counsel. We decline to do so.

Davila v. Davis, 137 S. Ct. 2058, 2062–63 (2017).

Conclusion

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Based upon the foregoing discussion and analysis, the Petition for Writ of

Habeas Corpus is denied because the claims are without merit or have been

procedurally defaulted.

Certificate of Appealability

When a district court issues an order under § 2254 adverse to the applicant it

“must issue or deny a certificate of appealability.” R. Governing Section 2254

Cases in the U.S. Dist. Cts., R. 11. If a federal court denies a habeas application on

procedural grounds without reaching the underlying constitutional claims, the court

should issue a certificate of appealability if the prisoner has shown “that jurists of

reason would find it debatable whether the petition states a valid claim of the

denial of a constitutional right and that jurists of reason would find it debatable

whether the district court was correct in its procedural ruling.” Slack v. McDaniel,

529 U.S. 473, 484 (2000). “Where a plain procedural bar is present and the district

court is correct to invoke it to dispose of the case, a reasonable jurist could not

conclude either that the district court erred in dismissing the petition or that the

petitioner should be allowed to proceed further.” Id.; see also Khaimov v. Crist,

297 F.3d 783, 786 (8th Cir. 2002) (interpreting Slack in the following manner: “1)

if the claim is clearly procedurally defaulted, the certificate should not be issued;

2) even if the procedural default is not clear, if there is no merit to the substantive

constitutional claims, the certificate should not be issued; but, 3) if the procedural

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default is not clear and the substantive constitutional claims are debatable among

jurists of reason, the certificate should be granted”).

For the reasons stated in this opinion, the Court finds that Petitioner’s third,

fifth, six(b) and (c), seven and eight claims are procedurally defaulted. The Court

also finds that the denial of Petitioner's other claims one, two, four, six (a) are

based on such a clear record and well-settled law that no reasonable jurists would

debate that no constitutional right of Petitioner was denied. Therefore,

no certificate of appealability will issue in this case.

Accordingly,

IT IS HEREBY ORDERED that the Petition for Writ of Habeas Corpus,

[Doc. No. 1], is DISMISSED.

IT IS FURTHER ORDERED that no certificate of appealability shall

issue.

A separate judgment in accordance with this Opinion, Memorandum and

Order is entered this same date.

Dated this 22™ day of September, 2021.

HENRY EDWARD AUTREY

UNITED STATES DISTRICT JUDGE

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