Shaw v. Adams

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

ADRIAN DARCY SHAW, )

)

Petitioner, )

)

v. ) Cause No. 4:21 CV 707 DDN

)

RICHARD ADAMS, )

)

Respondent. )

MEMORANDUM OPINION AND ORDER

Before the Court is the petition of Missouri state prisoner Adrian Darcy Shaw for a

writ of habeas corpus pursuant to 28 U.S.C. § 2254.

The parties have consented to the exercise of plenary authority by the undersigned

United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). For the reasons set forth

below, the petition for a writ of habeas corpus is denied.

BACKGROUND

Underlying conviction

The following relevant facts are stated by the Missouri Court of Appeals in its

Memorandum Supplementing Order affirming petitioner’s conviction in the Circuit Court

of the City of St. Louis.

Introduction

Adrian Darcy Shaw (“Defendant”) was found guilty at jury trial of

statutory sodomy. Defendant was sentenced to 16 years in the Missouri

Department of Corrections (“DOC”). Prior to trial, the trial judge conducted

a hearing (“491 hearing”) required by § 491.0752 to decide if the State could

use out-of-court statements made by the alleged victim (“J.B.”) to her

parents, grandmother (“Grandmother”), and a social worker, Karen Gudic.

The trial court’s decision to allow the use of the out-of-court statements to

these four witnesses is Defendant’s sole point on appeal. Defendant objected

when J.B.’s mother (“Mother”), Grandmother, and Gudic testified to the out-

of-court statements at trial. However, Defendant did not object when J.B.’s

father (“Father”) testified to the out-of-court statements at trial.

At the end of the 491 hearing, the court made specific findings on the

admissibility of the out-of-court statements. Because the evidence of the

time, content, and circumstances of J.B.’s statements to Mother, Father,

Grandmother, and Gudic presented at the 491 hearing provided a sufficient

indicia of reliability, the trial court did not abuse its discretion in admitting

these statements at trial under § 491.075. Therefore, we affirm the trial

court’s decision to allow these witnesses to testify at trial regarding J.B.’s

statements.

Factual and Procedural Background

Defendant was set for trial on August 14, 2017. On August 11, the

court held a 491 hearing to decide the admissibility of out-of-court statements

made by J.B. to Mother, Father, Gudic, and Grandmother.

The 491 Hearing

The following was developed at the 491 hearing:

J.B., Defendant, and Mother all lived at Grandmother’s house in June 2015.

J.B had normally slept in Mother’s bed. Mother had just bought a cot for J.B.

to sleep in. According to Father, Defendant was not responsible for taking

care of J.B. at home. Grandmother said J.B. felt Defendant was her best

friend.

On June 2, Mother and J.B. went to Wal-Mart, and later J.B. played

with her cousin. J.B. wore an orange/pink shirt with a bow and animal-print

shorts throughout the day on June 2. Later that evening, Mother and Father

went to the casino so Grandmother was babysitting J.B. and her infant

brother. J.B.’s cot was set up in Grandmother’s room at the foot of her bed.

J.B. was in the living room with Grandmother when Mother and

Father left. That night, J.B. went to sleep in her cot. J.B. slept in the shirt and

animal-print shorts she had worn throughout the day. According to

Grandmother, J.B. woke up during the night and woke Grandmother saying

something had scared her. Grandmother let J.B. sleep in bed with her. At this

point, Defendant and J.B.’s brother were also in the bed.

Grandmother called Mother asking her to come home to take care of

the children. Grandmother did not feel well. J.B. and J.B.’s brother were both

upset so Grandmother wanted Mother and Father to come home. When

Mother and Father arrived, everyone was asleep in Grandmother’s bed

although Father suspected Defendant was pretending to be asleep. Father

moved J.B. to Mother’s room. Then Father moved J.B.’s brother to Mother’s

room, and everyone went to sleep.

On the morning of June 3, J.B. was woken up by her Mother. J.B. was

still kind of asleep. While J.B. was scooting out of bed, Mother noticed J.B.’s

animal-print shorts were ripped. Mother asked her how her shorts got ripped.

J.B. was fiddling with her hands, just looking off. She did not answer. Again,

mother asked her how the shorts got ripped. J.B. said her cousin ripped them.

Mother said her cousin could not have ripped them because Mother

saw J.B and her shorts, undamaged, after coming home from playing with

her cousin. Then Mother saw the other side of the shorts were also ripped.

Mother asked again who ripped her shorts. She added, “If you don’t tell me,

I’m going to beat your ass.” J.B. then said Defendant ripped them.

Mother inquired, “[Defendant] ripped them?” J.B. said yes and that

she tried to tell Grandmother. Mother asked what Grandmother did, but J.B.

said Grandmother was still asleep. Mother asked, “Did he touch you?” But

J.B. did not answer. Then Mother asked, “did he touch your private?” To

which J.B. said yes. Mother found Father and told J.B. to tell Father what

had happened.

Father asked J.B. how her shorts got ripped. They had just bought

them so he wanted to know how they were already ripped. J.B. was sitting

on the bed. She was looking a little scared. At first, J.B. said her cousin,

Father’s nephew, ripped the shorts. Father said her cousin couldn’t have

because they would have noticed when J.B came home from playing with

her cousin. Father asked again and told J.B. she’d be in trouble if she didn’t

tell them how she ripped the shorts. Father said, by “get in trouble”, he meant

he would whoop her ass. Father kept pressuring. J.B. said Defendant ripped

them.

Then Father said Mother called Grandmother because they were

worried Defendant had touched J.B. J.B. told Father that Defendant was

“trying to do something” and “it had been a long time”. Father said “J.B.

don’t lie on him. If you’re lying, you’re going to get your ass whooped. How

did your shorts get ripped?” J.B. said Defendant ripped the shorts.

Mother called Grandmother to see if she was still with Defendant.

Mother took J.B. into the hallway and asked her where her “private area” is.

J.B. pointed to her vaginal area. J.B. told Mother she told Defendant to stop,

but he said to be quiet because she would wake her brother up which would

make Grandmother mad.

On June 4, J.B. was taken to a social worker, Karen Gudic, at Cardinal

Glennon Hospital for a medical cursory interview. Gudic explained a medical

cursory interview is used to get enough information to determine if a doctor

should see a child complaining of abuse or neglect and where on the body

the doctor should check. She had been working in this position for around

seven years at the time of her interview with J.B.

Gudic said J.B. was talkative but soft-spoken. In these types of

interviews, the interviewer will build rapport and ask open-ended questions.

In the conversation, Gudic asked why J.B. came to the hospital. J.B. said

because Defendant touched her private parts. Gudic asked if she could point

to her private parts. J.B. pointed to her vaginal area. Gudic asked what he

touched her with. J.B. said his hand. Gudic asked if he touched her on her

skin, clothing, or something else. Then, J.B. took her right hand and placed

it inside her shorts by her vaginal area touching her skin.

A week or two after the incident and these initial disclosures,

Grandmother spoke to J.B. while they watched cartoons. Grandmother and

J.B. were sitting on Grandmother’s bed, and J.B. did not seem aware of “what

was going on or anything”. Grandmother asked if Defendant touched her.

J.B. said he did. Grandmother asked where he touched her. In response, J.B.

put her hands between her legs.

Court Ruling on Admissibility

At the 491 hearing, the court made specific findings on the out-of-

court statements the State could use at trial. The court allowed Mother to

testify at trial about: J.B.’s silence when first asked who ripped the shorts;

J.B. saying her cousin ripped them; J.B. saying Defendant ripped them; J.B.

saying yes when asked if Defendant touched her private area; and J.B.

pointing to her vaginal area when asked where her private are was (sic).

Father could testify about J.B. saying: her cousin ripped the shorts;

Defendant ripped the shorts; and Defendant tried to do “something”.

Grandmother could testify about J.B. saying yes when asked if the Defendant

touched her and J.B. demonstrating where Defendant touched her by putting

her hands between her legs. Gudic could testify to: J.B. saying Defendant

touched her; J.B. pointing to her private area; and J.B. saying Defendant

touched her with his hand.

At trial, the State called ten witnesses including Mother, Father,

Gudic, and Grandmother. The jury found Defendant guilty of statutory

sodomy in the first degree under § 566.062.15 . Defendant was sentenced to

16 years in Missouri DOC.

(Doc. 18-3 at 2-6) (footnotes omitted).

Petitioner’s direct appeal

Petitioner directly appealed the judgment and sentence to the Missouri Court of

Appeals. In his appeal, petitioner argued only that the trial court’s decision to allow Ashley

Brown, Angela Brown, Percy Brown, and Karen Gudic to testify as to the out-of-court

statements of J.B. violated Missouri hearsay law. (Doc. 18-1 at 19.) Mo. Rev. Stat. §

491.075 allows otherwise inadmissible statements made by a child under the age of 14 to

be admitted as substantive evidence of the truth of the matter asserted if they relate to a

sexual offense performed by another and meet a set of factors. The trial court must hold a

hearing outside the presence of the jury and decide if “time, content and circumstances of

the statement provide sufficient indicia of reliability.” § 491.075.1(1). At trial, petitioner

objected to the statements made by Ashley Brown, Angela Brown, and Karen Gudic. He

did not object to the statements made by Percy Brown. The Court of Appeals reviewed the

statements that were objected to for abuse of discretion; it reviewed the statements that

were not objected to under plain error. (Doc. 18-3 at 7.) On March 28, 2019, the Court of

Appeals found no error or abuse of discretion as to any of the admitted statements. (Id. at

13.) Petitioner did not seek any further appellate review by the Missouri Supreme Court or

United States Supreme Court.

Motion for post-conviction relief

On November 13, 2017, petitioner filed a pro se motion for post-conviction relief

under Missouri Supreme Court Rule 29.15 in the circuit court. This motion was

prematurely filed because the Missouri Court of Appeals was still considering his direct

appeal. The circuit court held the motion in abeyance until petitioner’s appellate proceeding

was concluded. See Missouri Supreme Court Rule 29.15(b) (2014); McKay v. State, 520

S.W.3d 782, 787 (Mo. 2017) (holding that a prematurely filed post-conviction motion

should be held in abeyance). The court appointed counsel for petitioner who, after being

granted an extension of time, filed a motion for post-conviction relief on September 5,

2019.

In his motion, petitioner asserted two grounds for relief: First, his trial counsel

rendered ineffective assistance of counsel for failing to object to the prosecutor using

leading questions with witness Douglas Torrens. Second, his trial counsel rendered

ineffective assistance because she advised him not to testify at the trial. An evidentiary

hearing was held, and petitioner’s trial counsel testified. On January 17, 2020, the motion

court denied petitioner’s motion for post-conviction relief. (Doc. 18-5.)

Petitioner appealed the circuit court’s denial of post-conviction relief to the Missouri

Court of Appeals. The only ground for appeal was that his trial counsel was ineffective for

failing to object to the prosecutor asking leading questions of Douglas Torrens. The Court

of Appeals affirmed (Doc. 18-7) and issued its mandate on May 13, 2021.

Timeliness of federal habeas petition

Petitioner commenced this federal habeas corpus action on June 16, 2021.

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) created a one-

year period for filing a petition for a writ of habeas corpus in the federal courts. 28 U.S.C.

§ 2244(d)(1). The limitations period begins to run at the end of direct appellate review —

once the judgment of the state trial court is final or the time to seek direct review has

expired. Gonzales v. Thaler, 565 U.S. 134, 150 (2012). Petitioner’s direct review ended

April 12, 2019, after the fifteen-day deadline to appeal the appellate court’s decision to the

Missouri Supreme Court passed. Mo. Sup. Ct. R. 84.17. The AEDPA’s limitations period

is tolled while a “properly filed application for State post-conviction or other collateral

review with respect to the pertinent judgment or claim is pending”. 28 U.S.C. § 2244(d)(2).

The limitations period was tolled until May 14, 2021, the day after the Missouri Court of

Appeals denied petitioner’s post-conviction relief appeal. The pending federal petition was

timely filed.

PETITIONER’S GROUNDS FOR FEDERAL HABEAS RELIEF

Pro se habeas petitions should be liberally construed. Archuleta v. Hedrick, 365

F.3d 644, 648 (8th Cir. 2004). Petitioner Shaw alleges the following grounds for federal

habeas relief:

(1) he was falsely arrested (Doc. 1 at 4);

(2) his trial counsel rendered ineffective assistance in several respects (Doc. 1-1 at 44);

(3) the trial court’s jury instructions were faulty (Docs. 1-1 at 57; 13);

(4) the testimony against him was perjured (Doc. 1-1 at 9);

(5) there was insufficient evidence to support his conviction (Docs. 1-1 at 1, 9, 12, 11

at 7);

(6) inadmissible hearsay evidence was admitted against him (Doc. 11 at 1);

(7) the refiling of the case against him violated double jeopardy (Doc. 11 at 4);

(8) there was an error in his sentencing, (Doc. 12); and

(9) he suffered from vindictive prosecution (Doc. 17 at 3-4).

EXHAUSTION AND PROCEDURAL BAR

28 U.S.C. § 2254 requires that a federal habeas corpus petitioner exhaust his state

law remedies before he seeks relief in federal court. A prisoner has not exhausted his state

law remedies if he “has the right under the law of the State to raise, by any available

procedure, the question presented.” 28 U.S.C. § 2254(c). In Missouri, an appeal to the

intermediate state appellate court exhausts state remedies, thus permitting federal habeas

review. See Mo. Sup. Ct. R. 83.04; Randolph v. Kemna, 276 F.3d 401, 404 (8th Cir. 2002)

(“Rule 83.04 … makes clear that Missouri does not consider a petitioner who bypasses its

supreme court in favor of federal habeas review to have denied the State its rightful

opportunity to resolve federal constitutional claims.”).

To preserve an issue for federal habeas review, a state prisoner must fairly present

his claims to the state courts during the trial court or post-conviction proceedings and on

appeal. Sweet v. Delo, 125 F.3d 1144, 1149 (8th Cir. 1997). Failure to raise a denied claim

in a post-conviction appeal in state court is an abandonment of the claim that bars federal

habeas review. Id. at 1150; Coleman v. Thompson, 501 U.S. 722, 750 (1991). Petitioner’s

post-conviction motion raised two claims: first, his trial counsel rendered ineffective

assistance for failing to object to the prosecutor asking leading questions of witness

Douglas Torrens, and second, trial counsel rendered ineffective assistance because she

advised him not to testify at the trial. After the post-conviction motion court denied these

claims, petitioner preserved only the first for federal habeas review of those claims by

raising only it in his appeal from the denial of post-conviction relief. Thus, the only claim

that is not procedurally barred is the claim that his trial counsel rendered ineffective

assistance for failing to object to the prosecutor asking leading questions.

Petitioner may overcome the procedural bar to the other ground if he can

demonstrate a legally sufficient cause for the default and actual prejudice resulting from it,

or if the failure to review the claim would result in a fundamental miscarriage of justice.

Coleman, 501 U.S. at 749-750. See also Murray v. Carrier, 477 U.S. 478, 485, 495 (1986).

Generally, to establish sufficient cause for a procedural default, petitioner must “show that

some objective factor external to the defense impeded [his] efforts to comply with the

State’s procedural rule.” Coleman, 501 U.S. at 753. To establish actual prejudice, petitioner

“must show that the errors of which he complains worked to his actual and substantial

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

Caspari, 173 F.3d 1136, 1141 (8th Cir. 1999). Petitioner does not make any attempt to

overcome the procedural default. He does not claim any external factor prevented him from

bringing any of his other claims to the state courts, and there is no evidence in the record

of such a factor.

The fundamental miscarriage of justice exception allows for review when petitioner

makes a showing that new evidence indicates “a constitutional violation has probably

resulted in the conviction of one who is actually innocent.” Brownlow v. Groose, 66 F.3d

997, 999 (8th Cir. 1995) (quoting Schlup v. Delo, 513 U.S. 298, 322 (1995)). “’[A]ctual

innocence’ means factual innocence, not mere legal insufficiency.” Bousley v. United

States, 523 U.S. 614, 623 (1998). Petitioner must show “it is more likely than not that no

reasonable juror would have found [him] guilty beyond a reasonable doubt.” Schlup, 513

U.S. at 327. Petitioner asserts that he is actually innocent of the charges and that new

evidence exists, including evidence of perjury and a recantation of Douglas Torrens

testimony. However, he presents no specific evidence to that effect. Thus, his argument

for a fundamental miscarriage of justice is not supported.

Petitioner has presented no legally sufficient cause for his procedural default or a

substantial basis for his allegation that he would suffer a fundamental miscarriage of

justice. Only petitioner’s claim for ineffective assistance of counsel is properly before this

court for consideration.

STANDARD OF REVIEW

Under the AEDPA, a federal court may only grant habeas relief on a claim that has

been decided on the merits by a state court when that 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 federal law if it “arrives at

a conclusion opposite to that reached by [the United States Supreme] Court on a question

of law or … decides a case differently than [the] Court has on a set of materially

indistinguishable facts.” Thaler v. Haynes, 559 U.S. 43, 47 (2010). A state court’s decision

involves an “unreasonable application” of clearly established federal law if “the state court

identifies the correct governing legal principle from [the] Court’s decisions but

unreasonably applies that principle to the facts of the prisoner’s case.” Id. This standard is

difficult to meet because habeas corpus “is a guard against extreme malfunctions in the

state criminal justice systems, not a substitute for ordinary error correction through appeal.”

Harrington v. Richter, 562 U.S. 86, 102 (2011). A state-court decision is not unreasonable

if “‘fairminded jurists could disagree’ on [its] correctness.” Id. at 101 (quoting Yarborough

v. Alvarado, 541 U.S. 652, 664 (2004)). “Even a strong case for relief does not make the

state court's contrary conclusion unreasonable.” Harrington, 562 U.S. at 102.

Determination of factual issues made by a state court “shall be presumed correct,”

and the applicant “shall have the burden of rebutting the presumption by clear and

convincing evidence.” 28 U.S.C. § 2254(e)(1).

DISCUSSION

Ineffective Assistance of Counsel—Ground 2

Petitioner alleges that his trial counsel rendered constitutionally ineffective

assistance when she failed to object to the prosecutor asking leading questions of witness

Douglas Torrens about non-redacted portions of his letter to the prosecutor. Petitioner

raised this claim to the Missouri courts who found it without merit. Under AEDPA, the

Court analyzes whether the Missouri courts acted contrary to clearly established federal

law or applied it in an unreasonable manner.

In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court found that the

right to effective assistance of counsel arises from the Sixth and Fourteenth Amendments.

The right to counsel is “the right to effective assistance of counsel.” McMann v.

Richardson, 397 U.S. 759, 771 n.14 (1970). Under Strickland, a petitioner is entitled to

federal habeas corpus relief upon a showing that “counsel’s conduct so undermined the

proper function of the adversarial process that the trial cannot be relied on as having

produced a just result.” Strickland, 466 U.S. at 686. To prevail on a Strickland claim,

petitioner must pass a two-part test. First, petitioner must show that counsel’s

representation “fell below an objective standard of reasonableness.” Id. at 688. Second,

petitioner must show that “there is a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have been different.” Id. at 694.

To avoid a hindsight bias, where every unsuccessful trial strategy seems suspect in the light

of the result, the Court must give a strong presumption that counsel’s conduct “falls within

the wide range of reasonable professional assistance” placing the burden on the petitioner

to overcome the presumption that counsel’s actions were reasonable trial strategy. Id. at

689.

Analyzing the claim, the Missouri Court of Appeals wrote:

In this case, the decision not to object to the prosecutor’s use of leading

questions does not constitute deficient performance given Counsel’s trial

strategy underlying the decision. See Michael [v. State of Missouri], 348

S.W.3d 164, 168 (Mo. Ct. App. 2011)] (similarly finding with respect to a

decision not to object to particular testimony). Trial Counsel testified in her

deposition she did not object to the procedure of the prosecutor asking

leading questions because she thought it “honestly would be the safest route,

so that [Torrens] wouldn’t say anything that was irrelevant and not related to

the actual charges [ ] in this case.” We find this was a reasonable trial

strategy.

(Doc. 18-7 at 6-7.)

Petitioner’s counsel made a reasonable strategic choice that Torrens being led by

the prosecutor would be safer than him potentially speaking about unrelated issues to the

jury. This shows consideration of the potential options and reflects the logic behind the

choice to not object. “Strategic choices made after thorough investigation of the law and

facts relevant to plausible options are virtually unchallengeable.” Strickland, 466 U.S. at

690. Thus, the Missouri courts’ application of federal law was reasonable and petitioner’s

claim of ineffective assistance of counsel is without merit.

Procedurally Barred Claims

False Arrest—Ground 1

Petitioner asks for habeas relief on the grounds that he was falsely arrested. He

claims that a detective came to his job and told his boss he was only going in for

questioning. (Doc. 1 at 4.) A false arrest claim is rooted in the Fourth Amendment

prohibition against unreasonable search and seizure. Marksmeier v. Davie, 622 F.3d 896,

900 (8th Cir. 2010).

If a state provides full and fair litigation of a Fourth Amendment claim, a state

prisoner cannot obtain federal habeas relief. Stone v. Powell, 428 U.S. 465, 494 (1976). A

Fourth Amendment search and seizure claim is only reviewable by a federal habeas court

if “either the state provided no procedure by which the prisoner could raise

his Fourth Amendment claim, or the prisoner was foreclosed from using that procedure

because of an unconscionable breakdown in the system.” Willett v. Lockhart, 37 F.3d 1265,

1273 (8th Cir. 1994).

The record shows that Missouri provided adequate procedures for petitioner’s other

Fourth Amendment claims and that petitioner took advantage of those procedures during

his trial. Petitioner was able to suppress statements he had made during a polygraph exam.

(Doc. 18-9 at 203.) Even though petitioner did not bring this particular false arrest Fourth

Amendment claim, it is clear the state provided a procedure for the petitioner to raise Fourth

Amendment claims and petitioner was not foreclosed from bringing those claims as

evidenced by his other successful Fourth Amendment claims. According to Willet, because

the procedure was available and petitioner was not foreclosed from using it, his false arrest

claim is not cognizable for review by this court.

Instructional Error—Ground 3

Petitioner claims that the instructions given to the jury were faulty. Petitioner alleges

that the instructions given to the jury did not align with the Missouri Approved Instructions.

(Doc. 1-1 at 57.) In non-capital cases, instructions containing state law errors are not

grounds to obtain federal habeas relief. Gilmore v. Taylor, 508 U.S. 333, 342 (1993);

Estelle v. McGuire, 502 U.S. 62 (1991). Federal habeas courts do not have the authority to

provide relief for state law errors, or the province to reexamine state law determinations by

state courts. Evenstad v. Carlson, 470 F.3d 777, 782-83 (8th Cir. 2006). As such, the claim

for relief based on faulty jury instructions cannot be heard by this court.

Perjured testimony—Ground 4

In another letter to the court after his initial petition, petitioner claims that he was

convicted on testimony that the prosecution knew to be perjured. See Doc. 1-1 at 9. When

a prosecutor fails to correct false testimony that the prosecutor knows is false, it violates

the defendant’s due process rights and is grounds for overturning a conviction. Napue v.

People of State of Ill., 360 U.S. 264, 269 (1959). Similarly, a prosecutor not disclosing a

promise to not prosecute a witness deceives the court and jurors when contrary testimony

is given by the witness. Giglio v. United States, 405 U.S. 150, 153 (1972).

In order to obtain relief, petitioner is required to show that perjured testimony was

used, that the prosecution knew or should have known that the testimony was perjury, and

that there is a reasonable likelihood that the perjured testimony could have affected the jury

verdict. United States v. Bass, 478 F.3d 948, 951 (8th Cir. 2007). Even liberally construing

petitioner’s allegations, petitioner presents the court with no particularized set of facts to

support the allegation of perjured testimony. Without sufficient facts to support his claim,

petitioner’s allegations of perjured testimony are baseless. This ground is without merit.

Insufficient evidence—Grounds 5 and 6

In his letters to the court after his initial petition, petitioner asserts that evidence was

not sufficient to support his conviction. Construing these letters liberally as attempts to

amend his petition as a pro se litigant, the Court considers this argument as an additional

ground for relief. Archuleta v. Hedrick, 365 F.3d 644, 648 (8th Cir. 2004) (stating pro se

petitions should be construed liberally).

In general, a reviewing court may only set aside a jury’s verdict for insufficient

evidence if no rational trier of fact could agree with the jury. Cavazos v. Smith, 565 U.S.

1, 2 (2011). In the particular context of federal habeas review, the federal court may only

overturn the state court if the decision was objectively unreasonable. Id at 2. The court

views sufficiency of evidence claims in the light most favorable to the State and in the light

of applicable state law. Jackson v. Virginia, 443 U.S. 307, 319, 324 (1979). Based on the

evidence on the record, summarized above by the Missouri Court of Appeals, there is

sufficient evidence for a trier of fact to find that petitioner was guilty of statutory sodomy

under Mo. Rev. Stat. § 566.062.1. The statute defines first degree sodomy as “deviate

sexual intercourse with another person who is less than fourteen years old.” Id. Deviate

sexual intercourse is defined as “any act involving the genitals of one person and the hand

… of another person or any sexual act involving the penetration, however slight of the male

or female sex organ or the anus by a finger . . . for the purpose of arousing or gratifying the

sexual desire of another person…” Mo. Rev. Stat. § 566.010(1) (2015). The evidence

presented at trial could allow a rational trier of fact to sufficiently find the essential

elements of the statutory sodomy crime beyond a reasonable doubt. As a rational trier of

fact could come to the same verdict as petitioner’s jury, his claim of insufficient evidence

is without merit.

Double Jeopardy—Ground 7

Petitioner claims in very general terms that his rights under the Double Jeopardy

Clause of the Fifth Amendment were violated, because he was tried and convicted on a

charge that had been dismissed by nolle prosequi by the state. (Doc. 11 at 4.) Such is not

what happened factually. Petitioner was initially charged in two counts: statutory sodomy

in violation of Mo. Rev. Stat. § 566.062, and child molestation in violation of § 566.067.

(Doc. 18-10 at 2.) He was indicted on April 6, 2017. Petitioner remained charged with

both counts in the alternative until the jury found petitioner guilty of the statutory sodomy.

Then the state dismissed by nolle prosequi the charge of child molestation. (Docs. 18-9 at

471, 508; 18-10 at 2.)

The Double Jeopardy Clause protects people from being tried more than once for

the same offense. Currier v. Virginia, 138 S. Ct. 2144, 2149 (2018). Once jeopardy has

attached a defendant cannot be retried for the same charge. Crist v. Bretz, 437 U.S. 28, 35

(1978). Jeopardy attaches when the jury is empaneled and sworn. Martinez v. Illinois, 572

U.S. 833, 839 (2014). The record does not indicate that defendant was tried and convicted

on a previously dismissed charge. Thus, petitioner’s rights under the Double Jeopardy

Clause were not violated. This ground is without merit.

Sentencing Errors—Ground 8

Petitioner asserts that his Sixth Amendment rights were violated when he was

sentenced to a term greater than what was recommended by the jury. Lafler v. Cooper, 566

U.S. 156, 165 (2012) (stating any amount of jail time has Sixth Amendment significance).

Petitioner’s assertion is contradicted by the record. Before trial, on August 11, 2017, the

circuit judge found that petitioner was a prior and persistent offender under Mo. Rev. Stat.

§ 558.016.3 as he had admitted to two or more prior felonies committed at different times.

(Doc. 18-10 at 12.) When a court finds that a defendant is a prior persistent offender, the

court, not the jury, pronounces sentence. Mo. Rev. Stat. § 558.016. This ground for relief

is without merit.

Vindictive Prosecution---Ground 9

Petitioner asserts that he suffered from vindictive prosecution. Vindictive

prosecution occurs when a prosecutor seeks to punish a defendant solely for exercising a

valid legal right. United States v. Williams, 793 F.3d 957, 963 (8th Cir. 2015). It is the

petitioner’s burden to demonstrate that prosecution was brought to punish him for

exercising a legal right. Id. Petitioners have two routes to establish prosecutorial

vindictiveness. First, they can show “objective evidence of the prosecutor's vindictive or

improper motive in increasing the number or severity of charges.” United States v.

Chappell, 779 F.3d 872, 879 (8th Cir. 2015). If they cannot establish vindictiveness

following the first route, in rare instances, a petitioner may “rely upon a presumption of

vindictiveness, if he provides sufficient evidence to show a reasonable likelihood of

vindictiveness exists” Id. Prosecutors have broad discretion in performing their duties, so

“the defendant's burden to show vindictive prosecution is ‘a heavy one’” Williams, 793

F.3d at 963 (quoting United States v. Leathers, 354 F.3d 955, 961 (8th Cir.2004)).

Petitioner alleges that vindictiveness “accrued throughout [the] trial” and points to

a section of the trial transcript documenting questions by the jury during deliberations.

(Doc. 17.). It is unclear how these trial transcript pages relate to petitioner’s accusations of

vindictiveness. The charges against petitioner were never increased in number or severity

at any point during the criminal proceedings against him. There is no evidence of

prosecutorial vindictiveness or a reasonable likelihood of vindictiveness. The claim of

prosecutorial vindictiveness is without merit.

CONCLUSION

For the reasons set forth above,

IT IS HEREBY ORDERED that the petition of Adrian Darcy Shaw for a writ of

habeas corpus under 28 U.S.C. § 2254 [Doc. 1] is denied. This action is dismissed with

prejudice.

IT IS FURTHER ORDERED that all pending motions of petitioner are denied as

moot.

Petitioner having made no substantial showing that that he was deprived of a

constitutional right,

IT IS FURTHER ORDERED that a certificate of appealability is denied. 28

U.S.C § 2253(c)(2).

An appropriate Judgment Order is issued herewith.

/s/ David D. Noce l

UNITED STATES MAGISTRATE JUDGE

Signed on February 15, 2023.