Roberts v. Lewis

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

SOUTHERN DIVISION

EZELL ROBERTS, )

)

Petitioner, )

)

vs. ) Case No. 1:17-CV-214 JAR

)

BILL STANGE1, )

)

Respondent. )

MEMORANDUM AND ORDER

This matter is before the Court on the Petition of Ezell Roberts for a writ of habeas corpus

under 28 U.S.C. § 2254. (ECF No. 9). The State has filed a response. (ECF No. 24). Petitioner

filed a traverse. (ECF No. 32). For the reasons set forth below, the petition for a writ

of habeas corpus is denied.

I. BACKGROUND

Petitioner is currently incarcerated at Southeast Correctional Center in Charleston,

Missouri. After a jury trial, Petitioner was convicted of fifteen counts of statutory rape and

statutory sodomy perpetrated against his step-daughter over the course of several years, from the

time she was approximately nine years old until she was a junior in high school. The trial court

sentenced Petitioner to nine thirty-year prison terms and six seven-year prison terms, all to run

concurrently.

On January 25, 2011, Petitioner filed a direct appeal to the Missouri Court of Appeals for

the Eastern District, claiming that the trial court erred in (1) allowing testimony regarding a

1 Pursuant to Fed. R. Civ. P. 25(d), the undersigned substitutes Bill Stange, the current warden of

Southeast Correctional Center, as the proper Respondent.

possible theft of money from the victim’s bank account by the victim’s mother or Petitioner; (2)

allowing the testimony of Debbie Weedemeir, the victim’s school counselor; (3) allowing the

testimony of Detective Stephanie Bonney; and (4) allowing the video of the confession into the

jury room during deliberations. (ECF No. 25-3). On December 11, 2012, the state appellate court

affirmed Petitioner’s conviction and sentence, and a mandate was issued. State v. Roberts, 388

S.W.3d 584 (Mo. Ct. App. E.D. 2012); (ECF No. 25-5).

On April 4, 2013, Petitioner filed a self-represented Motion to Vacate, Set Aside or Correct

the Judgment or Sentence pursuant to Rule 29.15, asserting seven grounds for relief. (ECF No. 25-

9 at 7-23). In an amended motion, Petitioner asserted the following three grounds for relief: (1)

ineffective assistance of trial counsel for failing to adduce into evidence the victim’s diary; (2)

ineffective assistance of trial counsel for failure to investigate and interview certain potential

witnesses; and (3) ineffective assistance of trial counsel for failure to adequately cross-examine

the victim about a letter she wrote to Petitioner that was not disclosed to the State and thus not

admitted at trial. (Id. at 32-43). On January 24, 2014, the motion court held a hearing on the

amended motion. On March 23, 2016, Petitioner’s claims for post-conviction relief were denied

on the merits following the evidentiary hearing. (Id. at 49-61).

Petitioner filed a notice of appeal with the Missouri Court of Appeals for the Eastern

District, ED101956. Petitioner raised two issues: (1) the motion court clearly erred by failing to

make an independent inquiry whether Petitioner’s post-conviction counsel abandoned him by

filing his amended motion out of time; and (2) the motion court clearly erred by denying the

ineffective assistance claim for failure to disclose the victim’s letter so that it could be adduced at

trial. On November 3, 2015, the appellate court reversed and remanded for an inquiry into whether

Petitioner was abandoned by post-conviction counsel. Roberts v. State, 473 S.W.3d 672, 673 (Mo.

Ct. App. 2015).

On remand, the motion court found abandonment, determining that the late filing of the

amended motion was the sole fault of former post-conviction counsel, and permitted the late filing.

The motion court then denied the amended motion again, adopting its previously issued findings

of fact and conclusions of law. (ECF No. 25-13 at 44-56). Petitioner filed a second appeal with the

Missouri Court of Appeals for the Eastern District, ED 104340. Petitioner raised the same issues

as previously. On March 21, 2017, the appellate court affirmed the judgment. Roberts v. State, 514

S.W.3d 61 (Mo. Ct. App. 2017).

On December 11, 2017, Petitioner filed his pro se § 2254 federal habeas. (ECF No. 1). On

January 22, 2018, Petitioner filed his Amended Petition. (ECF No. 9).

Petitioner raises the following grounds for relief:

Ground One: Petitioner claims the Missouri Court of Appeals reached an

unreasonable determination of the facts and an unreasonable interpretation of

clearly established federal law in consideration Petitioner’s Batson claim.

Ground Two: Petitioner asserts trial counsel was ineffective because he failed

to move to sever the charges.

Ground Three: Petitioner maintains trial counsel was ineffective because he

failed to present evidence that Petitioner is right-handed when the gunman held

the weapon in his left hand.

Ground Four: Petitioner argues post-conviction counsel was ineffective

because he failed to raise and litigate trial counsel’s ineffectiveness for failing

to convey a plea offer of 20 years, which resulted in a procedural default.

Grounds Five through Eight: Petitioner claims that his post-conviction

counsel was ineffective for failing to raise various claims of ineffective

assistance of his trial counsel. In Ground Five, Petitioner claims that his post-

conviction counsel was ineffective for failing to raise that his trial counsel was

ineffective for failing to object to the prosecutor’s improper reference in closing

argument regarding Petitioner’s right to remain silent. In Ground Six,

Petitioner asserts his post-conviction counsel was ineffective for failing to raise

that trial counsel was ineffective for failing to object to and raise in the motion

for new trial that Petitioner was being convicted and sentenced as to all fifteen

counts of statutory sodomy, in violation of the Double Jeopardy Clause of the

Constitution. In Ground Seven, Petitioner maintains that post-conviction

counsel was ineffective for failing to raise that trial counsel was ineffective for

failing to object to and raise in the motion for new trial that the trial court erred

in allowing the State to illegally amend the charges in the indictment without a

grand jury approval. In Ground Eight, Petitioner alleges that post-conviction

counsel was ineffective for failing to raise a claim that trial counsel was

ineffective for failing to object to and raise in a motion for new trial that the

trial court lacked jurisdiction to sentence Petitioner as a result of a defective

indictment.

Ground Nine: Petitioner argues the Motion Court erred in denying his Rule

29.15 motion without making an independent inquiry into the abandonment of

his post-conviction counsel.

Ground Ten: Petitioner asserts the Motion Court erred in denying Petitioner’s

Rule 29.15 post-conviction motion because trial counsel was ineffective by

failing to disclose T.H.’s letter to Petitioner prior to trial and, therefore, was not

admitted at trial.

(ECF No. 1).

On June 6, 2018, Respondent filed a Response to Order to Show Cause. (ECF No. 24).

Respondent addressed ten of Petitioner’s claims. Petitioner filed a traverse on February 7, 2019.

(ECF No. 32). Petitioner argued that Respondent’s contention that Petitioner only raises ten claims

is incorrect, and Petitioner raised nineteen claims.

II. STANDARD OF REVIEW

Pursuant to 28 U.S.C. § 2254, a district court “shall entertain an application for a writ of

habeas corpus on behalf of a person in custody pursuant to the judgment of a State court only on

the ground that he is in custody in violation of the Constitution or laws or treaties of the United

States.” 28 U.S.C. § 2254(a). “[I]n 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).

Federal courts may not grant habeas relief on a claim that has been decided on the merits

in State court unless 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 law if it

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

a set of facts that are materially indistinguishable from a [Supreme Court] decision . . . and

nevertheless arrives at a [different] result.” Cagle v. Norris, 474 F.3d 1090, 1095 (8th Cir. 2007)

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

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

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

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

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

apply.” Williams v. Taylor, 529 U.S. 362, 407 (2000). A state court decision may be considered an

unreasonable determination “only if it is shown that the state court’s presumptively correct factual

findings do not enjoy support in the record.” Ryan v. Clarke, 387 F.3d 785, 790-791 (8th Cir. 2004)

(citing 28 U.S.C. § 2254(e)(1)).

A state court’s factual findings are presumed to be correct. 28 U.S.C. § 2254(e)(1); Wood

v. Allen, 558 U.S. 290, 293 (2010). Review under § 2254(d)(1) is limited to the record before the

state court that adjudicated the claim on the merits. Cullen v. Pinholster, 563 U.S. 170, 180-81

(2011). Clear and convincing evidence that state court factual findings lack evidentiary support is

required to grant habeas relief. 28 U.S.C. § 2254(e)(1); Wood, 558 U.S. at 293.

III. DISCUSSION

A. Grounds One Through Four: Trial Court Error in Admitting Evidence

In Grounds One through Four, Petitioner claims that the trial court erred in admitting four

pieces of evidence: (1) testimony regarding bad acts of the victim’s mother; (2) testimony of

Debbie Weedemeier, the victim’s school counselor, regarding the victim’s statements; (3)

testimony of Detective Stephanie Bonney regarding the victim’s statements; and (4) allowing the

jurors to have Petitioner’s video confession in the jury room during deliberations. Petitioner raised

these claims in his direct appeal and the Missouri Court of Appeals denied the claims. (ECF No.

25-5).

Grounds One through Four of the petition must be denied. “Federal habeas corpus relief

does not lie for errors of state law.” Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). The admission

or exclusion of evidence is a question of state law and rarely gives rise to a federal question

reviewable in a habeas petition. Scott v. Jones, 915 F.2d 1188, 1190-91 (8th Cir. 1990). Federal

courts “may not review evidentiary rulings of state courts unless they implicate federal

constitutional rights.” Evans v. Luebbers, 371 F.3d 438, 443 (8th Cir. 2004). The Court can review

a state court evidentiary ruling in a habeas petition only to determine if the asserted error denied

due process. Bailey v. Lockhart, 46 F.3d 49, 50 (8th Cir. 1995). This occurs when the evidentiary

ruling is “so conspicuously prejudicial or of such magnitude as to fatally infect the trial.” Osborne

v. Purkett, 411 F.3d 911, 917 (8th Cir. 2005). The evidentiary mistake must be “so egregious that

[it] fatally infected the proceedings and rendered [petitioner's] entire trial fundamentally

unfair.” Anderson v. Goeke, 44 F.3d 675, 679 (8th Cir. 1995). “To carry that burden, the petitioner

must show that there is a reasonable probability that the error complained of affected the outcome

of the trial—i.e., that absent the alleged impropriety the verdict probably would have been

different.” Id.

The evidentiary rulings raised by Petitioner do not implicate Petitioner’s federal

constitutional rights. As to Ground One, the Missouri Court of Appeals appropriately found that

the testimony at issue—that the victim shared a bank account with her mother and found out money

was being taken from her account—was not inflammatory evidence that accused Petitioner of the

prior bad act of taking money from her account. If anything, the testimony implicated the victim’s

mother, not Petitioner, was taking her money.

As to the alleged hearsay evidence in Grounds Two and Three, Petitioner argued that the

testimony from the victim’s school counselor and the detective regarding the victim’s statements

was hearsay, improper bolstering, and violated Petitioner’s right to confront his accuser. The trial

court admitted the evidence under the excited utterance exception to hearsay. The Missouri Court

of Appeals affirmed the admission and rejected Petitioner’s arguments, explaining that because

the victim testified and was subject to cross-examination, the rationale for excluding hearsay as

inherently unreliable was not applicable at Petitioner’s trial. The appellate court also found that

the testimony of both witnesses was not improper bolstering; rather, the testimony provided the

jury with a full picture of the circumstances. Additionally, there was no violation of Petitioner’s

right to confront his accuser because he was able to cross examine both witnesses as well as the

declarant—the victim.

As to Ground Four, Petitioner argued he was prejudiced by allowing the DVD recording

of Petitioner’s confession into the jury room during deliberations. At trial, the recording was

admitted, over defense counsel’s objection, and it was played for the jury. When the jury asked to

see the confession portion of the recording during deliberation, the trial court provided the DVD

to the jury, overruling defense’s argument that if the jury wanted to see the video again it should

be viewed in its entirety in the courtroom. The Missouri Court of Appeals acknowledged that

decisions of what exhibits to give the jury are within the trial court’s sound discretion, and that

under Missouri law, written or recorded confessions in criminal cases may be given to the jury

during deliberation. The appellate court found no trial court error and no prejudice. The

undersigned agrees. Nothing in Petitioner's amended petition or traverse, or in the prior courts’

records, suggests that any of the four trial court rulings were “so conspicuously prejudicial or of

such magnitude as to fatally infect the trial” or “so egregious that [it] fatally infected the

proceedings and rendered [petitioner's] entire trial fundamentally unfair.”

Even if this Court were to determine that the admission of the aforementioned evidence

was in error, Petitioner has failed to show there is a reasonable probability the result of the trial

would have been different had the evidence not been admitted. Multiple witnesses testified about

the victim’s consistent accounts and descriptions of the acts of sexual abuse. Petitioner himself

admitted to the police having intercourse with the victim on multiple occasions. Because the

evidence of Petitioner’s guilt was overwhelming, Petitioner cannot show prejudice based on the

admission of the above evidence. Grounds One through Four are denied.

B. Grounds Five Through Eight: Ineffective Assistance of Counsel

In four separate grounds, Petitioner appears to allege that his post-conviction counsel was

ineffective. (ECF No. 9 at 17-18). Petitioner raised the underlying claims of ineffective assistance

of trial counsel in his first 29.15 post-conviction motion. (ECF No. 25-9 at 7-24). The Missouri

Court of Appeals reversed the motion court’s judgment and remanded the action for the motion

court to conduct an independent inquiry to determine if Petitioner was abandoned by counsel.

(ECF No. 25-12). Thereafter, the St. Louis County Circuit Court determined that Petitioner had

been effectively abandoned and allowed him to file an amended Rule 29.15 motion. (See ECF No.

25-13 at 104-05). Petitioner then raised the same claims in his amended Rule 29.15 motion. (See

ECF No. 25-13 at 104-16). Petitioner, however, did not raise these grounds in his Rule 29.15 post-

conviction appeal. (ECF No. 25-14).

Petitioner’s independent claims of ineffective assistance of post-conviction counsel are not

cognizable in a federal habeas petition. See Jamison v. Bowersox, No. 4:08 CV 913 RWS/DDN,

2011 WL 2669363, at *14 (E.D. Mo. May 12, 2011), report and recommendation adopted, No.

4:08 CV 913 RWS, 2011 WL 2669350 (E.D. Mo. July 7, 2011) (“a claim of ineffective assistance

of post-conviction proceedings counsel cannot be granted in a habeas petition”); 28 U.S.C. §

2254(i) (specifically stating that “[t] he ineffectiveness or incompetence of counsel during Federal

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

arising under section 2254”); Cox v. Burger, 398 F.3d 1025, 1030 (8th Cir. 2005) (affirming the

denial of a request for an evidentiary hearing on a claim of ineffective assistance of post-conviction

proceedings counsel because “[t]here is no federal constitutional right to post-conviction

counsel”). Therefore, the Court denies Grounds Five through Eight because they do not allege a

cognizable claim under 28 U.S.C. §2254.

In the event that Petitioner is attempting to raise these claims to demonstrate cause and

overcome his procedural default under Martinez, these grounds still fail. To excuse the default, he

must show either “cause and actual prejudice” or “actual innocence.” Murphy v. King, 652 F.3d

845, 849-50 (8th Cir. 2011). Petitioner seems to argue there is cause to excuse the default under

Martinez v. Ryan, 566 U.S. 1 (2012), because his postconviction counsel was ineffective.

To excuse a procedural default under Martinez, the underlying claim of ineffective

assistance of trial counsel must be “substantial,” and postconviction counsel must have been

constitutionally ineffective with respect to the claim. Martinez, 556 U.S. at 14. A claim is

“substantial” if it has “some merit” and “insubstantial” if “it does not have any merit or ... is wholly

without factual support.” Id. at 14-16; Kemp v. Kelley, 924 F.3d 489, 499 (8th Cir. 2019); Dorsey

v. Steele, No. 4:15-08000-CV-RK, 2019 WL 4740518, at *2 (W.D. Mo. Sept. 27, 2019), aff'd sub

nom. Dorsey v. Vandergriff, 30 F.4th 752 (8th Cir. 2022). However, all four of Petitioner’s claims

are meritless.

In Ground Five, Petitioner alleges that post-conviction counsel was ineffective for failing

to raise on appeal that trial counsel failed to object to the prosecutor’s reference in closing

arguments regarding Petitioner’s right to remain silent. Petitioner, however, testified at his trial.

See ECF No. 25-1 at 41-54. The prosecutor merely referenced Petitioner’s testimony as part of

his closing arguments. Thus, the Court holds that post-conviction counsel’s failure to raise this

argument on appeal is a meritless argument and not sufficient to set aside the default.

As to Ground Six, Petitioner argues that post-conviction counsel was ineffective for failing

to argue that trial counsel improperly failed to object to and raise in a motion for new trial that

Petitioner was convicted and sentenced on all fifteen counts of statutory-sodomy, which was

violates the Double Jeopardy Clause. (ECF No. 9 at 17). The Double Jeopardy Clause affords a

defendant three basic protections:“‘[It] protects against a second prosecution for the same offense

after acquittal. It protects against a second prosecution for the same offense after conviction. And

it protects against multiple punishments for the same offense.’” Brown v. Ohio, 432 U.S. 161, 165

(1977) (quoting North Carolina v. Pearce, 395 U.S. 711, 717 (1969)); Ohio v. Johnson, 467 U.S.

493, 497–98 (1984). Here, Petitioner was accused and convicted of abusing his step-daughter

multiple times over the several years. Petitioner was convicted of six counts of attempted first-

degree statutory rape, three counts of first-degree statutory sodomy, and six counts of second-

degree statutory rape. Petitioner was convicted of multiple offenses that occurred at different

times, not for the same offense. Ohio v. Johnson, 467 U.S. 493, 500 (1984) (“While the Double

Jeopardy Clause may protect a defendant against cumulative punishments for convictions on the

same offense, the Clause does not prohibit the State from prosecuting respondent for such multiple

offenses in a single prosecution.”). Thus, Petitioner’s claim in Ground Six was meritless because

he was prosecuted and sentenced for different violations of the law and his post-conviction counsel

was not deficient for failing to raise this issue.

In Ground Seven, Petitioner alleges that his post-conviction counsel was ineffective for

failing to raise the claim that trial counsel should have objected to and raised in a motion for new

trial that the trial court erred in allowing the State to illegally amend the charges in the indictment

without a grand jury approving the charges under counts one through six. (ECF No. 1 at 7). In

the underlying case, the prosecutor amended the indictment from statutory rape in the first degree

and amended the chargers to attempted statutory rape in the first degree. See ECF No. 25-1 at 4-

5. This is not a different offense since attempt is included in the same statute as statutory rape in

the first degree. Thus, the prosecutor did not require grand jury approval to amend the indictment.

See State v. Folson, 197 S.W.3d 658, 661 (Mo. Ct. App. 2006) (citing State v. Mace, 665 S.W.2d

655, 660 (Mo. Ct. App. 1984)(“Where a statute creates an offense that can be committed by

alternate methods, an amendment merely changing the method by which the offense was

committed does not charge a different offense.”); see also State v. Smith, 242 S.W.3d 735, 742

(Mo. Ct. App. 2007)(“Since the elements of that crime remained the same, no new or different

offense was charged in violation of Rule 23.08.”); Mo. S. Ct. R. 23.08 (“Any information may be

amended or an information may be substituted for an indictment at any time before verdict or

finding if: (a) No additional or different offense is charged, and (b) A defendant's substantial rights

are not thereby prejudiced. No such amendment or substitution shall cause delay of a trial unless

the court finds that a defendant needs further time to prepare a defense by reason of such

amendment or substitution.”). Therefore, post-conviction counsel was not ineffective for failing to

raise this issue because it is a meritless claim. Ground Seven is denied.

In Ground Eight, Petitioner contends that his post-conviction counsel was ineffective for

not raising a claim that trial counsel was ineffective for failing to object and raise in a motion for

new trial that the trial court lacked jurisdiction to sentence Petitioner due to a defective indictment.

(ECF No. 9 at 18). That is, Petitioner claims that the indictment was defective because it

improperly included multiple counts “mirrored after each other and failed to state any additional

facts or details to distinguish the multiple counts from each other as well as to state any valid

Missouri law being violated as to the multiple counts set forth in the Indictment.” (Id.) As

previously discussed, the Indictment was not defective simply because several counts resemble

each other. Petitioner’s exploitation of T.H. lasted over several years and included many different

incidents of abuse. Petitioner has not identified any counts in the indictment that were duplicative

or confusing. “In addition, if [Petitioner] was really confused because of lack of specificity of the

charge, he could have, at any stage of the proceedings, requested a bill of particulars, as is

authorized by Rule 23.04. By failing to do so, he waived any right to raise the issue on appeal.”

State v. Stark, 728 S.W.2d 301, 303 (Mo. Ct. App. 1987) (citing State v. Neal, 661 S.W.2d 844,

845 (Mo.App.1983)). Thus, the Court denies Ground Eight as meritless.

Finally, the Court notes that, in addition to not demonstrating cause for the procedural

default, Petitioner has also not shown that he suffered prejudice. See Charron v. Gammon, 69 F.3d

851, 858 (8th Cir. 1995) (citing Coleman v. Thompson, 501 U.S. 722, 750 (1991) (“In order for a

habeas petitioner to receive federal review of habeas claims that have been procedurally defaulted

in state court, the petitioner must demonstrate cause for the default and actual prejudice.”). The

overwhelming evidence in this case supported the guilty verdict, including the testimony of

numerous supporting witnesses and Petitioner’s own confession. Petitioner cannot show the

prejudice required to establish ineffective assistance of counsel under Strickland. And, for this

additional basis, the Court must deny Grounds Five through Eight.

C. Ground Nine

In his habeas petition, Petitioner asserts that the motion court erred in denying his Rule

29.15 motion without conducting and independent inquiry into the existence of abandonment.

Petitioner asserts that his post-conviction counsel untimely filed the amended motion and such

untimeliness created a presumption of abandonment.

The St. Louis County Circuit Court previously addressed this issue and imparted relief to

Petitioner. In its “Independent Inquiry Into Abandonment,” the St. Louis County Circuit Court

discerned that Petitioner had been abandoned and afforded him relief. See ECF No. 25-13 at 104-

05, ¶ 13 (“Due to the conduct of amended motion counsel, Movant was effectively abandoned.”);

¶ 14 (“Based upon that finding of abandonment, the Court permits the late filing of the amended

motion and adopts it’s [sic] previously issued findings of fact, conclusions of law and order

consistent with these findings.”). This Court finds no basis for relief on Ground Nine because

Petitioner already has been afforded relief.

Alternatively, the Court holds that Ground Nine fails because it is not cognizable in a

federal habeas corpus action. “‘[A]n infirmity in a state post-conviction proceeding does not raise

a constitutional issue cognizable in a federal habeas petition.’” Gee v. Groose, 110 F.3d 1346,

1351–52 (8th Cir. 1997) (citing Jolly v. Gammon, 28 F.3d 51, 54 (8th Cir.)(quoting Williams-Bey

v. Trickey, 894 F.2d 314, 317 (8th Cir. 1990)). Thus, the Court denies relief under Ground Nine

for any alleged error in his Rule 29.15 post-conviction proceedings.

D. Ground Ten

As his final basis for relief, Petitioner contends that the motion court erred in denying his

Rule 29.15 post-conviction motion because trial counsel did not disclose T.H.’s letter to Petitioner

to the State prior to trial. As a result, the trial court did not allow the admission of T.H.’s letter at

trial. (ECF No. 9 at 19). Petitioner raised this issue in his second Rule 29.15 post-conviction

motion, and the motion court denied his claim. (ECF No. 25-13 at 47-59).

At the evidentiary hearing, Petitioner testified that he sought to have the letter from T.H.

admitted to show her “true feelings” about Petitioner. Petitioner admitted that the substance of the

letter came into evidence at trial, despite the letter itself being excluded. (ECF No. 25-16 at 7).

The Missouri Court of Appeals noted that T.H.’s letter did not contain any exculpatory

information. Rather, as T.H. admitted on cross-examination, the letter stated that T.H. was grateful

for Petitioner being there for herself, her sister, and mother. The Missouri Court of Appeals held

that Petitioner could not “show he was prejudiced by the failure to disclose the

letter to the State because there was no reasonable probability of a different result had the jury

seen the letter itself.” (ECF No. 25-16 at 8). The Court of Appeals determined that Petitioner did

not make a sufficient showing to support Strickland’s prejudice prong because the letter was not

exculpatory and because of the overwhelming evidence that Petitioner was guilty. The Court

agrees that Missouri Court of Appeals reasonably applied Strickland based upon the record.

Petitioner has not shown a constitutional violation by the state court, and the Court denies Ground

Ten for relief.

E. Miscellaneous Grounds for Relief

In his Traverse (ECF No. 32), Petitioner contends that he alleges 19—not ten—grounds

for relief, as previously denoted in his Amended Habeas Petition. Basically, Petitioner is asking

the Court to go through his prior petition and “consider any of the points and facts therein to the

extent that they might support any of [Petitioner’s] various Petition grounds.” Raisch v. Miles,

No. 19-CV-0894 (MJD/ECW), 2021 WL 4295942, at *16 (D. Minn. July 29, 2021). “The Court

will not do this. It is not the Court's responsibility to put together [Petitioner’s] arguments for

purposes of his § 2254 petition; that is his job.” Id. “‘Judges are not like pigs, hunting for truffles

buried in [the record].’” Richards v. Dayton, No. 13-CV-3029 (JRT/JSM), 2015 WL 1522199, at

*10 (D. Minn. Jan. 30, 2015) (quoting United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991)

(per curiam)), R.&R. adopted, 2015 WL 1522237 (D. Minn. Mar. 30, 2015); cf. Rules Governing

§ 2254 Cases in the U.S. District Courts at Rule 5 (requiring § 2254 petition to “substantially

follow” standardized form). Therefore, the Court denies any additional purported grounds for

relief.

IV. Conclusion

Based on the foregoing, the Court finds that Petitioner's request for relief pursuant to 28

U.S.C. § 2254 should be denied. The Court finds that the state court's findings and conclusions

regarding Petitioner's claims were not contrary to, nor do they involve an unreasonable application

of clearly established federal law as determined by the Supreme Court of the United States, nor

did they result in a decision that was based on an unreasonable determination of the facts in light

of the evidence presented in the state court proceedings. Further, because Petitioner has made no

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

See 28 U.S.C. § 2253(c)(2); Tiedeman v. Benson, 122 F.3d 518, 522 (8th Cir. 1997).

Accordingly,

IT IS HEREBY ORDERED that the Amended Petition of Ezell Roberts for a Writ

of Habeas Corpus (ECF No. 9) pursuant to 28 U.S.C. § 2254 is DENIED.

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

denial of a constitutional right and this Court will not issue a Certificate of Appealability. A

separate Judgment of Dismissal in accord with this Order is entered on this same date.

Dated this 31st day of March, 2023.

10H A. ROSS

TED STATES DISTRICT JUDGE

16