# Galvin v. Buckner

> District Court, E.D. Missouri · March 28, 2023

URL: https://www.frixlaw.com/law-library/cases/10238528

## Case

- **Court:** District Court, E.D. Missouri
- **Decided:** March 28, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
WILLIAM A. GALVIN, )
)
Petitioner, )
v. ) Case No. 4:19-cv-03229-SEP
)
LADONNA M. BUCKNER, )
)
Respondent. )
MEMORANDUM AND ORDER
Before the Court is Petitioner William Galvin’s Petition for a Writ of Habeas Corpus
under 28 U.S.C. § 2254. Doc. [1]. For the reasons set forth below, the petition is denied.
FACTUAL AND PROCEDURAL BACKGROUND
Petitioner is an inmate at the South Central Correctional Center in Licking, Missouri,
where he is serving a twenty-five year sentence on his conviction for second-degree murder. On
direct appeal, the Missouri Court of Appeals summarized the facts of his case as follows:
Defendant lived with his girlfriend and her mother, Bonnie Brown (the Victim). On May
9, 2011, between 9:00 and 9:30 a.m., Defendant spoke with the teller at his bank, telling
her that the Victim had died of an overdose. The teller testified that Defendant smelled
of alcohol. Later that morning, around 10:20 a.m., Defendant called 911 to report a
break-in and murder, telling the dispatcher that he had just returned home from
Springfield to discover the door kicked in and the Victim dead in her bedroom. The
responding officers testified Defendant was “noticeably intoxicated.” During his
interview with police, Defendant alternatively stated that he had returned home from
Springfield early in the day and not discovered the Victim until after he had gone to the
bank, and that he had discovered the Victim’s body and then gone to the bank, calling
911 when he returned home. He later agreed he had not gone to Springfield at all.
Michael Pavia, an inmate with Defendant, testified Defendant told him he had not meant
to kill the Victim. Defendant and the Victim had argued in the evening, but had gone
their separate ways. He then drank vodka all night, and when the argument resumed in
the morning, he had strangled her. When he could not revive her, he kicked in the door
to make it look like a break-in.
Sergeant Ryan McCarrick testified to the following. He had been employed with the
Lincoln County Sheriff’s Office since 2005, and he was a member of the Major Case
Squad, which is a group of Metropolitan-area law-enforcement agencies that share
manpower to handle serious crimes, such as homicides. Since becoming an investigator,
he had had 600 hours of training, including attending the Medical/Legal Death
Investigation course at St. Louis University School of Pathology, a four-day Death and
Homicide class, a three-day Child Death and Homicide class, two International Homicide
Investigator seminars, and the Medical and Coroner’s symposium. As part of the
training, he had learned signs to look for in determining whether a death was “potentially
from a homicide,” including strangulation cases. The trial court overruled defense
counsel’s objection that Sergeant McCarrick was not testifying as an expert, and he
testified that in strangulation cases he looked for ligature marks, petechiae in the eyes,
and bluish discoloration to the upper torso, head, and neck.
In this case, when Sergeant McCarrick arrived at the scene and observed the body of the
Victim, he noted her upper torso, head and neck were blueish, there were red marks on
her neck, and there were predominant petechiae in both eyes. Based on his initial
observations and the circumstances of the case, he called the Major Case Squad.
Dr. Kamal Sabharwal, the medical examiner who performed the autopsy, testified that he
had concluded the Victim’s cause of death was strangulation and the manner of death was
homicide. He testified to the signs of strangulation he noted on the Victim’s body.
While he also noted the Victim had heart disease, he testified, “the Victim’s other injuries
were more significant than the cardiac disease as far as causing her death in this case.”
By contract, Defendant presented evidence from Dr. Thomas Young, a self-employed
forensic pathologist, who reviewed the autopsy report, the Victim’s medical records, and
photographs of the crime scene and autopsy, and concluded the Victim died from heart
disease and not strangulation.
Leatha Clark, the Victim’s daughter and Defendant’s girlfriend, testified that at the time
of the murder, she was in the county jail. Clark testified that when she walked through
the house after the murder, she found an empty bottle of vodka in her and Defendant’s
room. Clark agreed that Defendant was “a drinker,” and he had been told to quit after
having gall-bladder surgery. Defendant had agreed to quit drinking, but Clark confirmed
that the empty bottle of vodka in their room was not hers. She further testified the Victim
would argue with Defendant about his drinking. She stated that the Victim “liked
[Defendant] better when he didn’t drink,” and that he was loud and made the Victim
“nervous” when he drank. On cross-examination, Defendant’s counsel introduced a letter
the Victim had sent to Clark in jail showing the Victim and Defendant got along well.
During closing arguments, defense counsel argued: “This was a family. The Victim and
Defendant lived in the same house and Leatha Clark lived in the same house and they all
got along and they all shared expenses and they all laughed together; they cared about
each other. There’s no evidence to the contrary.” In response, the State argued: “This
was a happy family all living together under one roof except for the Victim was scared of
Defendant because he was a drunk and they would have fights when he would drink.”
Defense counsel objected on the basis of mischaracterizing the evidence, but the trial
court overruled the objection.
At the close of evidence, the trial court found Defendant guilty of second-degree murder
and sentenced him to twenty-five years’ imprisonment in the Missouri Department of
Corrections.
Doc. [12-4] at 2-4.
Petitioner’s convictions and sentences were affirmed on direct appeal. Doc. [12-4] at 8.
Petitioner then filed a pro se Rule 29.15 motion for post-conviction relief, after which counsel
was appointed for his state court post-conviction proceedings. Doc. [12-10] at 5, 12-30, 37.
Petitioner filed a timely amended Rule 29.15 motion seeking relief on grounds that his trial
counsel was ineffective. Id. at 44-84. The motion court denied the amended petition, and the
Missouri Court of Appeals affirmed the motion court’s decision after an evidentiary hearing. Id.
at 103-110; Doc. [12-9].
Petitioner then filed a habeas petition asserting four claims for relief: (1) the trial court
erred when it overruled defense counsel’s objection to the State’s closing arguments; (2) the trial
court erred when it overruled defense counsel’s objection to Officer Ryan McCarrick’s
testimony; (3) trial counsel was ineffective in failing to call neuropsychologist Dr. Robert
Heilbronner as a witness during the guilt phase of trial; and (4) trial counsel was ineffective in
failing to call Dr. Heilbronner as a witness during the sentencing phase of trial. Respondent
argues that Petitioner’s claims were considered on the merits by the state court and its
determinations are entitled to deference by this Court.
LEGAL STANDARD
A federal judge may issue a writ of habeas corpus freeing a state prisoner if the prisoner
is “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.
§ 2254(a). The judge must not issue a writ, however, if an adequate and independent state law
ground justified the prisoner’s detention, regardless of the federal claim. See Wainwright v.
Sykes, 433 U.S. 72, 81-82 (1977).
“Federal habeas review exists as ‘a guard against extreme malfunctions in the state
criminal justice systems, not a substitute for ordinary error correction through appeal.’” Woods
v. Donald, 575 U.S. 312, 316 (2015) (quoting Harrington v. Richter, 562 U.S. 86, 102-03
(2011)). Accordingly, “[i]n the habeas setting, a federal court is bound by [the Antiterrorism and
Effective Death Penalty Act (AEDPA)] to exercise only limited and deferential review of
underlying state court decisions.” Lomholt v. Iowa, 327 F.3d 748, 751 (8th Cir. 2003) (citing 28
U.S.C. § 2254). Under AEDPA, a federal court shall not grant relief to a state prisoner with
respect to any claim that was adjudicated on the merits in the state court proceedings unless the
state court’s 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.” 28 U.S.C. § 2254(d).
A state court decision is “contrary to” clearly established Supreme Court precedent “if
the state court arrives at a conclusion opposite to that reached by [the United States Supreme]
Court on a question of law or if the state court decides a case differently than [the United States
Supreme] Court has on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S.
362, 412-13 (2000). “[A] state court decision involves an unreasonable determination of the
facts in light of the evidence presented in the state court proceedings only if it is shown that the
state court’s presumptively correct factual findings do not enjoy support in the record.” Jones v.
Luebbers, 359 F.3d 1005, 1011 (8th Cir. 2004) (citations and internal quotation marks omitted);
see also Rice v. Collins, 546 U.S. 333, 338-39 (2006) (petitioner can rebut by clear and
convincing evidence presumption that state court factual findings are correct).
DISCUSSION
I. Grounds 1 and 2: Petitioner’s Claims of Trial Court Error
In Ground 1, Petitioner argues that the trial court erred when it overruled defense
counsel’s objection to the State’s closing arguments. In Ground 2, Petitioner contends that the
trial court erred when it overruled defense counsel’s objection to Officer Ryan McCarrick’s
testimony. The Missouri Court of Appeals considered both of these arguments on direct appeal,
and concluded that they were without merit. As further discussed below, the determination of
the Missouri Court of Appeals is entitled to deference and habeas relief is denied on Grounds 1
and 2.
“In the habeas context, rules of evidence and trial procedure are usually matters of state
law.” Bucklew v. Luebbers, 436 F.3d, 1010, 1018 (8th Cir. 2006). “It is not the province of a
federal habeas court to reexamine state court determinations on state law questions.” Estelle,
502 U.S. at 67. The admissibility of evidence at trial is ordinarily a matter of state law and “will
not form the basis for federal habeas relief.” Turner v. Armontrout, 845 F.2d 165, 169 (8th Cir.
1988) (citing Manning-El v. Wyrick, 738 F.2d 321, 322 (8th Cir.), cert. denied, 469 U.S. 919
(1984)); see also Nebinger v. Ault, 208 F.3d 695, 697 (8th Cir. 2000) (“Rulings on the evidence
in state trials rarely rise to the level of a federal constitutional violation.”).
“A federal court may, however, grant habeas relief when a state court’s evidentiary ruling
. . . is so prejudicial that it amounts to a denial of due process.” Turner, 845 F.2d at 169. “In a
§ 2254 habeas corpus proceeding, a federal court’s review of alleged due process violations
stemming from a state court conviction is narrow.” Anderson v. Goeke, 44 F.3d 675, 679 (8th
Cir. 1995). Accordingly, reversal of a state court evidentiary ruling is appropriate only if “the
petitioner . . . shows that the alleged improprieties were ‘so egregious that they fatally infected
the proceedings and rendered his entire trial fundamentally unfair.’” Anderson, 44 F.3d at 679
(internal citation omitted). To carry that burden, the petitioner must show “that absent the
alleged impropriety the verdict probably would have been different.” Id. In making that
determination, the federal habeas court “must review the totality of the facts in the case and
analyze the fairness of the particular trial under consideration.” Hobbs v. Lockhart, 791 F.2d
125, 128 (8th Cir. 1986). “No due process violation [exists], even if the evidence was
erroneously admitted, if other evidence of guilt is so overwhelming that the error is harmless.”
Wedemann v. Solem, 826 F.2d 766, 767 (8th Cir. 1987) (citing Hobbs v. Lockhart, 791 F.2d 125,
127-28 (8th Cir. 1986)).
Petitioner argues that the State mischaracterized the facts during closing argument when
the prosecutor stated, “Ms. Brown [the Victim] was scared of Mr. Galvin because he was a drunk
and they would have fights when he would drink.” Doc. [1] at 12. Petitioner asserts that the
evidence showed only that “Ms. Brown became nervous because [he] was loud when he drank
and that she liked him better when he did not drink.” Id. Therefore, Petitioner argues, the trial
court erred when it overruled defense counsel’s objection on this point. Id.
Petitioner raised the same point on direct appeal (Doc. [12-1] at 22) and the Missouri
Court of Appeals denied the claim on its merits, stating:
[Galvin] asserts on appeal that the State’s characterization of [Galvin] during closing
arguments as “a drunk” of whom the Victim was “scared” when he drank was both an
improper mischaracterization of the evidence and was prejudicial. His argument fails on
both fronts. The State, just like the defense, has wide latitude in drawing inferences from
the record when presenting its closing argument. The State has the right to give its view
of the evidence and the credibility of the witnesses. Clark testified at trial that [Galvin] was
“a drinker” and that she discovered an empty bottle of vodka under his bed although he
had been instructed not to drink following surgery. She stated that [Galvin] and the Victim
argued about his drinking and that his drinking made her “nervous.” The words “scared”
and “nervous,” while not identical, are variations of a theme. We conclude, looking at the
whole record, it was not improper for the State to infer the Victim was scared of [Galvin]
when he drank because the evidence included that they argued about his drinking and he
made her nervous when he drank.
Moreover, [Galvin] was not prejudiced by the State’s characterization, because he has not
shown that there was a reasonable probability the verdict would have been different had
the trial court sustained his objection to the State’s argument. In a bench trial, we presume
the trial court disregards improper evidence in reaching its judgment, unless the record was
clear the trial court considered and relief on the inadmissible evidence. Assuming,
arguendo, that the State’s comment during closing arguments was improper, there was no
evidence here that the trial court considered or relied on the State’s inference. Rather, we
trust that the trial court here was well able to distinguish as necessary between Clark’s
testimony that [Galvin] made her mother “nervous” when he drank, and the State’s
inference that she was “scared” of [Galvin] when he drank. A trial court is skilled in
evaluating each side’s argument as they present their analyses of the facts to the court.
Doc. [12-4] at 2-4 (citations omitted and cleaned up).
Petitioner also argues that the trial court erred by overruling defense counsel’s objection
to Officer Ryan McCarrick’s testimony regarding medical evidence. Doc. [1] at 15. He asserts
that Officer McCarrick was not qualified as an expert to testify about evidence regarding whether
a person had been killed by strangulation. Id. The Missouri Court also considered and rejected
this argument, stating:
It is permissible for an officer to testify concerning their observation of a fact based on the
witness’ experience as a police officer. Sergeant McCarrick testified he had been employed
with the sheriff’s office for ten years and had had 600 hours of training, including courses
and seminars in investigating homicides. Through his training and experience, he had
learned signs to look for in determining whether a death was potentially a homicide,
including strangulation cases. Sergeant McCarrick further testified that when he observed
the Victim, he noted her upper torso, head and neck were blueish, there were red marks on
her neck, and there was predominant petechiae in both eyes, which was consistent with the
signs of strangulation he had learned in his training as a police officer. He did not testify
to the Victim’s cause of death but rather to why he suspected a homicide and decided to
involve the Major Case Squad. Testifying to the signs of a homicide was well within his
expertise as an experienced deputy sheriff.
Doc. [12-4] at 7-8 (citations omitted and cleaned up).
The Missouri Court of Appeals’ decisions on both claims are reasonable and congruent
with applicable law, and thus deserving of deference. See United States v. Mullins, 446 F.3d
750, 760 (8th Cir. 2006) (Prosecutor can argue “a personal interpretation of the evidence” in
closing); Pederson v. Fabian, 491 F.3d 816, 829 (8th Cir. 2007) (“In its entirety, the prosecutor’s
closing argument was not such that it ‘so infected the trial with unfairness as to make the
resulting conviction a denial of due process.’”) (quoting Darden v. Wainwright, 477 U.S. 168,
181 (1986)); State v. Forest, 183 S.W.3d 218, 228 (Mo. banc 2006) (“The State, just like the
defense, has wide latitude in drawing inferenced from the record when presenting its closing
argument.”); see also United States v. Parker, 32 F.3d 395, 400 (8th Cir. 1994) (no error in
allowing police officer to testify on topic about which jurors would lack familiarity where officer
has developed specialized knowledge); State v. Woodson, 140 S.W.3d 621, 631 (Mo. Ct. App.
2004) (permissible for officer to testify to his observation of fact founded on his experience as a
police officer).
Even if this Court were to agree with Petitioner that the state evidentiary rulings were
erroneous—a question on which it does not take a position—not every trial court error amounts
to a constitutional deprivation. Petitioner has failed to show that sustaining either of his
objections at trial would have resulted in a different verdict. That is particularly true in the
context of a bench trial, where “we presume that a judge . . . will use evidence properly,
mitigating any prejudice.” United States v. DNRB, Inc., 895 F.3d 1063, 1068 (8th Cir. 2018).
Upon review of the record, the undersigned “cannot say that the alleged evidentiary errors, when
viewed in context of the entire trial, deprived [Petitioner] of a fair trial.” Anderson, 44 F.3d at
679. Petitioner’s claims in Grounds 1 and 2 are denied.
II. Grounds 3 and 4: Ineffective Assistance of Counsel
Grounds 3 and 4 both assert ineffective assistance of counsel. Petitioner claims that his
trial counsel was ineffective in failing to call neuropsychologist Dr. Heilbronner during both the
guilt (Ground 3) and penalty (Ground 4) phases of his trial. Petitioner argues that Dr.
Heilbronner would have testified that Petitioner suffered brain damage from a traumatic head
injury he sustained in an accident in 2004, and that the injury was exacerbated by his alcohol
abuse and Xanax consumption. Petitioner asserts that this testimony would have explained
Petitioner’s odd behavior and contradictory, incriminating statements he made after the victim’s
death. Petitioner asserts that had the trial judge heard such evidence he would have believed his
defense theory that the victim died of a heart attack, and would not have found him guilty.
Petitioner also argues that even if the judge nonetheless found him guilty, Dr. Heilbronner’s
testimony would have provided strong mitigating evidence that would likely have resulted in a
lesser sentence. Petitioner raised these claims in a post-conviction Rule 29.15 motion, the
motion court rejected them, and the Missouri Court of Appeals affirmed that decision.
The Sixth Amendment guarantees a criminal defendant the right to effective assistance of
counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). To show ineffective assistance of
counsel, Petitioner must show both that “[his] counsel’s performance was deficient” and that “the
deficient performance prejudiced [his] defense.” Id. at 687; see also Paulson v. Newton Corr.
Facility, 773 F.3d 901, 904 (8th Cir. 2014); Worthington v. Roper, 631 F.3d 487, 498 (8th Cir.
2011). To show deficient performance, Petitioner must show “that counsel made errors so
serious that counsel was not functioning as the ‘counsel’ guaranteed the [petitioner] by the Sixth
Amendment.” Strickland, 466 U.S. at 687. “Judicial scrutiny of counsel’s performance must be
highly deferential,” and Petitioner bears a heavy burden in overcoming “a strong presumption
that counsel’s conduct falls within the wide range of reasonable professional assistance” and
“might be considered sound trial strategy.” Id. at 689 (citation and internal quotation marks
omitted). To show prejudice, 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.
A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id.
at 694.
When an ineffective assistance claim has been addressed by the state court, this Court
must bear in mind that, “[t]aken 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)). In the habeas context, it is not sufficient for a petitioner
to “show that he would have satisfied Strickland’s test if his claim were being analyzed in the
first instance.” Bell v. Cone, 535 U.S. 685, 698-99 (2002). “Rather, he must show that the [state
court] applied Strickland to the facts of his case in an objectively unreasonable manner.” Id. at
699. “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.’” Williams, 695 F.3d at 831
(quoting Harrington v. Richter, 562 U.S. 86, 102 (2011)). “If the state court reasonably could
have concluded that [the petitioner] was not prejudiced by counsel’s actions, then federal review
under AEDPA is at an end.” Id. at 832 (internal quotation marks omitted).
In Ground 3, Petitioner argues that he was denied effective assistance of counsel when
his trial counsel trial failed to call neuropsychologist Dr. Heilbronner during the guilt phase of
his trial. Doc. [1] at 18. Petitioner contends that Dr. Heilbronner’s testimony about Petitioner’s
traumatic brain injury, which was worsened by his abuse of alcohol and Xanax, would have
explained his odd and inculpatory behavior in the immediate aftermath of the victim’s death. Id.
Petitioner raised this claim in his post-conviction Rule 29.15 motion, and after the motion
court denied the claim, he appealed that decision. The Missouri Court of Appeals, applying the
Strickland standard, agreed with the motion court and denied Petitioner’s claim as follows:
The choice of witnesses is generally a matter of trial strategy that will not support a claim
of ineffective assistance of counsel. Strategic choices made after thorough investigation
of the law and facts regarding plausible options are virtually unchallengeable. To prove
ineffective assistance for counsel’s failure to call a witness, the movant must show that: (1)
trial counsel knew or should have known of the existence of the witness; (2) the witness
could be located through reasonable investigation; (3) the witness would testify; and (4)
the witness’s testimony would have produced a viable defense. To establish ineffective
assistance of counsel based on failure to present an expert witness, the movant must show
what the evidence would have been had the expert testified. When trial counsel believes
that a potential witness’s testimony would not unequivocally support his client’s position,
counsel’s decision not to call the witness is a matter of trial strategy and does not constitute
ineffective assistance.
The defense maintained at trial that the victim died of a heart attack, not from strangulation.
The movant argues that Dr. Heilbronner would have testified that the movant suffered brain
damage from a traumatic head injury in 2004, and that the resulting impairment was
exacerbated with the movant’s alcohol and Xanax abuse. Dr. Heilbronner’s testimony, the
movant contends, would have explained his strange behavior and the incriminating
statements he made at the bank and during police interrogation. The movant maintains that
had Dr. Heilbronner testified, the trial court would have understood the movant’s
impairment. As a result, the trial court would have discounted the movant’s statement at
the bank that the victim had already died of an overdose—made before the time the movant
later claimed he found the victim’s body—and his inconsistent and dishonest statements to
police. Having discounted the movant’s incriminating statements and behavior, the movant
argues, the trial court then would have believed the defense theory that the victim died of
a heart attack.
The motion court heard extensive testimony from Dr. Heilbronner at the evidentiary
hearing, and watched the video of the movant’s hours of police interrogation. The motion
court concluded that Dr. Heilbronner’s testimony was not credible. Dr. Heilbronner
evaluated the movant in 2014, nearly three years after police arrested the movant for the
victim’s murder. Yet, Dr. Heilbronner concluded that the movant suffered a diminished
mental state at the time of the victim’s death in 2011, and accordingly should not be held
fully responsible for the murder. Dr. Heilbronner admitted during his testimony at the
motion hearing that he “should probably not have included that” conclusion in his report.
Dr. Heilbronner’s theory that the movant’s mental impairment caused his odd behavior at
the bank and with police depended on the movant being under the influence of alcohol and
drugs the day of the victim’s death. The motion court observed that Dr. Heilbronner relied
only on the movant’s self-reported use of alcohol and drugs when no other evidence in the
record supported the movant’s assertion that he had used drugs and alcohol on the day in
question. For example, Lieutenant Right testified that he has training in recognizing
impairment related to drug or alcohol use, but that the movant did not appear to be under
the influence during his police interview. After viewing the video of the movant’s police
interview, the motion court observed that the movant claimed confusion and problems
related to his brain injury only when police confronted him with inconsistencies and
evidence that contradicted his statements. Dr. Heilbronner, however, found the movant to
be a reliable reporter.
Furthermore, the video of the movant’s police interview was not admitted into evidence at
trial, but the State likely would have introduced it had Dr. Heilbronner testified. This video
would have harmed the movant’s case because it showed that the movant claimed
impairment and confusion primarily when, as the motion court observed, police caught him
lying. If a potential witness’s testimony would not unqualifiedly support the defendant’s
position, counsel’s decision not to call the witness does not constitute ineffective
assistance. Similarly, we will not deem counsel ineffective for making a considered,
strategic decision to forgo certain evidence to avoid opening the door to additional
damaging evidence. We defer to the motion court’s superior opportunity to judge the
credibility of witnesses. And trial counsel testified at the evidentiary hearing that he spoke
with Dr. Heilbronner, and determined that his testimony would not explain adequately the
movant’s strange behavior, thus demonstrating that trial counsel made a considered,
strategic decision. We are unconvinced by the movant’s argument that Dr. Heilbronner’s
testimony at trial would have explained away the movant’s incriminating statements and
suspicious behavior, thus leaving the trial court with a reasonable doubt that a homicide
occurred. In addition, Dr. Heilbronner’s testimony would not have explained the movant’s
admission to another inmate at the Lincoln County Jail that the movant killed the victim
by strangling her. The movant has failed to show that a reasonable probability exists that,
but for counsel’s errors, the result of the trial would have been different. The motion court
did not clearly err on this issue, and we deny the movant’s first point.
Doc. [12-9] at 3-6 (citations omitted and cleaned up).
Petitioner similarly claims that his trial counsel was ineffective in failing to call Dr.
Heilbronner to testify at the guilt phase of his trial, asserting that the trial judge would have given
him a lesser sentence had he heard this mitigating testimony. Doc. [1] at 22. Petitioner brought
this claim in his rule 29.15 motion, and on appeal, the Missouri Court of Appeals upheld the
motion court’s denial of the claim, stating:
This claim relies on the same arguments and evidence presented in the movant’s first point.
The motion court explicitly rejected Dr. Heilbronner’s opinion that the movant suffered
from mental impairment on the date in question as the result of a brain injury with his
impairment exacerbated by drug and alcohol use. The motion court found not credible Dr.
Heilbronner’s opinion that the movant had greater mental impairment on a day some three
years before Dr. Heilbronner evaluated him based on the movant’s self-reporting. We find
it unlikely that the trial court would have found Dr. Heilbronner’s testimony any more
credible, especially in view of the record at sentencing that cited the movant’s history of
burglary, disorderly conduct, and domestic violence even before his brain injury. In
addition, had Dr. Heilbronner testified at sentencing, then all of the movant’s records that
Dr. Heilbronner reviewed could have been presented to the court and emphasized by the
State. These records included reports from doctors who believed the movant was
exaggerating his symptoms and had the potential for explosive behavior. Trial counsel
testified that such evidence would not have helped the movant. The movant has failed to
establish a reasonable probability that the trial court would have given him a lesser sentence
had Dr. Heilbronner testified at sentencing. Therefore, we deny the movant’s second point.
Doc. [12-9] at 7-8 (cleaned up).
This Court must adopt a “strong presumption” that defense counsel’s conduct fell within
the wide range of reasonable representation. Strickland, 466 U.S. at 689. “The strength of the
presumption” that defense counsel’s decision not to call a witness is reasonable trial strategy
“turns on the adequacy of counsel’s investigation.” White v. Roper, 416 F.3d 728, 732 (8th Cir.
2005). “[S]trategic choices made after thorough investigation of law and facts relevant to
plausible options are virtually unchallengeable.” Id. After reviewing the relevant portions of the
record, the Court finds ample support for the Missouri Court of Appeals’ conclusion that
counsel’s strategic decision not to call Dr. Heilbronner was reasonable under the circumstances.
The record shows that Petitioner’s trial attorney was aware of Petitioner’s brain injury
and history of abusing alcohol, and that he hired Dr. Heilbronner to evaluate the impact of
Petioner’s medical condition. Doc. [12-19] at 109-10. Petitioner’s trial counsel seriously
considered calling Dr. Heilbronner as a witness, and even asked him to prepare to testify, but on
the second day of trial decided that it would be best not to call him. Id. at 111. Petitioner’s trial
counsel testified at the Rule 29.15 motion hearing that his primary goal in having Dr.
Heilbronner testify was to explain Petitioner’s inconsistent statements to law enforcement, as
well as his odd behavior at the bank, but that after speaking with Dr. Heilbronner around the time
of trial, he decided that his testimony would not be helpful in that respect. Id. at 112-13.
Upon review of the record, the undersigned concludes that Petitioner’s trial attorney’s
determination not to call Dr. Heilbronner was a reasonable strategic decision under the
circumstances of the case. Dr. Heilbronner was expected to testify that Petitioner was mentally
impaired at the time of the murder. Id. at 101. But the State had two reports prepared by
medical examiners stating that Petitioner was competent to stand trial. Id. And, as noted by the
Missouri Court of Appeals, had Dr. Heilbronner testified at trial, the State would almost certainly
have introduced the video of Petitioner’s interrogation, which showed that he acted confused
only immediately after being caught in a lie. Doc. [12-9] at 5-6. It was reasonable to avoid
opening the door to such damaging evidence. Petitioner has not overcome the “strong
presumption that [his] counsel’s conduct falls within the wide range of reasonable professional
assistance” and “might be considered sound trial strategy.” Strickland, 466 U.S. at 689.
On review of the record, the Missouri Court of Appeals did not unreasonably apply
Strickland to Petitioner’s ineffective assistance claim based on counsel’s failure to call Dr.
Heilbronner, and its decision was not an “unreasonable determination of the facts in light of the
evidence presented in state court.” Cole v. Roper, 623 F.3d 1183, 1187 (8th Cir. 2010);
28 U.S.C. § 2254(d). Therefore, the Court denies habeas relief on Grounds 3 and 4.
CONCLUSION
Petitioner is not entitled to federal habeas relief, and he has not made a substantial
showing of the denial of a constitutional right, as required for a certificate of appealability to
issue. 28 U.S.C. § 2253(c); see also Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997) (a
“substantial showing” is a showing that the “issues are debatable among reasonable jurists, a
court could resolve the issues differently, or the issues deserve further proceedings”). Thus, the
Court will not issue a certificate of appealability as to any claims raised in the petition.
Accordingly,
IT IS HEREBY ORDERED that Petitioner’s Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2254, Doc. [1], is DENIED.
IT IS FURTHER ORDERED that this case is DISMISSED with prejudice.
IT IS FINALLY ORDERED that the Court shall NOT ISSUE a certificate of
appealability as to any claim raised in the amended petition.
A separate judgment accompanies this Memorandum and Order.

Dated this 28" day of March, 2023.
hat. Lijteg.
SARAH E. PITLYK
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10238528. Public record. Not legal advice.