# Mitchell v. Jennings

> District Court, E.D. Missouri · June 26, 2023

URL: https://www.frixlaw.com/law-library/cases/10238864

## Case

- **Court:** District Court, E.D. Missouri
- **Decided:** June 26, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10238864

## How later opinions describe it (automated extraction)

- declining to extend Martinez to claims of ineffective assistance of appellate counsel on the ground that Martinez provided only a “narrow, equitable qualification” to the well- settled law of procedural default for claims of ineffective assistance of trial counsel

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

JASON MITCHELL, )
)
Petitioner, )
)
v. ) Case No. 4:20 CV 979 CDP
)
DON PHILLIPS AND TREVOR )
SMITH,1 )
)
Respondents. )

MEMORANDUM AND ORDER
This case is before the Court on the amended petition of Jason Mitchell for
writ of habeas corpus pursuant to 28 U.S.C. § 2254. On June 19, 2012, a jury
convicted Mitchell of stealing over $25,000 in the Circuit Court of Cape
Girardeau, Missouri (Cause No. 11CG-CR00224-01). On July 16, 2012, the trial
court sentenced him to fifteen years in prison. Mitchell’s conviction and sentence
were affirmed on appeal. State v. Mitchell, 407 S.W.3d 664 (Mo. Ct. App. 2013);
ECF 9-7.

1 Since the filing of this petition, petitioner has been paroled. Pursuant to Rule 2 of the Rules
Governing Section 2254 Cases in the United States District Courts, respondent is the state officer
who has custody. Therefore, Don Phillips, Chairman of the Division of Probation and Parole,
and Trevor Smith, the parole officer responsible for supervising petitioner, are substituted in lieu
of Terri Lawson as proper party respondents. See 28 U.S.C. § 2254, Rule 2(b), Advisory
Committee Notes.
Mitchell sought discretionary relief in both the Missouri Court of Appeals
and the Missouri Supreme Court. The Missouri Supreme Court denied his

application for transfer on October 1, 2013, and Mitchell did not file a petition for
writ of certiorari in the United States Supreme Court.
On December 23, 2013, Mitchell filed a timely pro se motion for post-

conviction relief pursuant to Missouri Supreme Court Rule 29.15. Retained
counsel subsequently filed an untimely amended motion, and the motion court
granted leave to amend. After an evidentiary hearing, the motion court denied
Mitchell’s pro se post-conviction motion on February 21, 2018, concluding that the

recently decided case of Gittemeier v. State, 527 S.W.3d 64 (Mo. banc 2017),2
precluded him from considering an untimely amended motion filed by counsel.3
ECF 9-14 at 43-61.

The Missouri Court of Appeals Eastern District affirmed the denial of Rule
29.15 relief on July 23, 2019. ECF 9-18. In rejecting Mitchell’s appeal, the

2 In Gittemeier, the Missouri Supreme Court held that the abandonment doctrine “does not
apply” when movant is represented by retained counsel and, therefore, “cannot excuse retained
counsel’s untimely amended motion.” 527 S.W.3d at 71. The abandonment doctrine permits the
motion court to accept an untimely filed amended motion for post-conviction relief where a
movant has been abandoned by appointed post-conviction counsel. See Price v. State, 422
S.W.3d 292, 298 (Mo. banc 2014).

3 At the hearing on the motion, counsel orally withdrew all but one claim. Counsel later
withdrew from the case and new counsel entered an appearance. New counsel subsequently
attempted to amend the motion more than two and half years after the amended motion was filed
to assert multiple new claims. That motion to amend was denied. However, the motion court
considered and rejected all claims raised in defendant’s original pro se filing. ECF 9-14.
Missouri Court of Appeals concluded that Mitchell waived two of his arguments
by not raising them in his pro se Rule 29.15 motion and refused to consider them.

ECF 9-18. The Missouri Court of Appeals issued its mandate on August 15, 2019.
ECF 9-19. The parties agree that Mitchell’s petition, filed on July 27, 2020, is
timely filed.
In his amended petition4 for habeas corpus, Mitchell, through counsel,

asserts five grounds for relief. Three of his claims are procedurally barred and will
be dismissed for that reason. The Missouri Court of Appeals addressed Mitchell’s
remaining two claims and denied them on the merits. Because the state appellate

court’s decision was not an unreasonable application of clearly established law and
was not based on an unreasonable determination of the facts, I will deny Mitchell’s
petition for writ of habeas corpus.

Background
The Missouri Court of Appeals described the factual and procedural
background of this case as follows:
Mitchell worked as a purchasing manager for the DeWitt Company
(“DeWitt”). DeWitt makes landscaping material used for weed prevention,
and Mitchell was responsible for purchasing fabric to be utilized in its
production. In his position as purchasing manager, Mitchell developed a
relationship with Rajiv Toprani, owner of KT America. Toprani’s company

4 The original petition is superseded by the filing of the amended petition and will be denied as
moot. In re Wireless Tel. Fed. Cost Recovery Fee Litig., 396 F.3d 922, 928 (8th Cir. 2005).
However, the Court notes the only difference between the two petitions is that the amended
petition has attached exhibits in support of Mitchell’s claims.
supplied fabric to DeWitt for production of the landscaping material.
Mitchell and Richard Potter, the chief financial officer of DeWitt, ultimately
discussed Toprani’s desire to expand his business. Potter and Mitchell
registered a fictitious named company called Global Census. Mitchell
owned sixty percent of the company and Potter owned forty percent. Potter
also set up a bank account in Global Census’s name. Thereafter, in return
for increased orders Toprani would deposit a percentage of the invoice
amounts paid by DeWitt to KT America into Global Census’ bank account.
DeWitt subsequently discovered the money being returned to Mitchell
through the deposits in Global Census’ account, and Mitchell was ultimately
charged with the class B felony of stealing, pursuant to Section 570.030.1
RSMo (Cum. Supp. 2009). Following trial, a jury convicted Mitchell of
stealing, and he was sentenced to fifteen years’ imprisonment. Mitchell now
appeals.

Mitchell, 407 S.W.3d at 665; ECF 9-7.
Discussion
In his amended petition for writ of habeas corpus, Mitchell raises five
grounds for relief:
(1) Mitchell was denied his Fourteenth Amendment rights to due process
and a fair trial when the trial court overruled his motion for judgment of
acquittal because the State failed to make a submissible case of stealing;

(2) Trial counsel was ineffective in failing to subpoena documents;

(3) Trial counsel was ineffective in failing to depose or adequately
investigate the State’s witnesses and to discover an audio recording of their
prior inconsistent statements that would have supported Mitchell’s theory of
defense;

(4) Trial counsel was ineffective in failing to inform Mitchell of a multi-tier
plea offer from which he would have selected one of the options and entered
a plea of guilty; and
(5) Mitchell was denied due process when the State failed to disclose Brady5
material.

Mitchell requests an evidentiary hearing on his claims.

Claims Adjudicated on the Merits: Grounds One and Two
When reviewing a claim on the merits, federal habeas relief can be granted
only if the state court adjudication “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,” 28 U.S.C. § 2254(d)(1), or
“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)(2); see Williams v.
Taylor, 529 U.S. 362, 379 (2000). The federal law must be clearly established at

the time petitioner’s state conviction became final, and the source of doctrine for
such law is limited to the United States Supreme Court. Id. at 380–83.
“A state court’s decision is ‘contrary to’ clearly established Supreme Court
precedent when it is opposite to the Supreme Court’s conclusion on a question of

law or different than the Supreme Court’s conclusion on a set of materially
indistinguishable facts.” Carter v. Kemna, 255 F.3d 589, 591 (8th Cir. 2001)

5 Brady material refers to evidence that must be disclosed by the prosecution under the United
States Supreme Court case of Brady v. Maryland, 373 U.S. 83 (1963). “Under Brady v.
Maryland, ‘suppression by the prosecution of evidence favorable to an accused . . . violates due
process where the evidence is material either to guilt or to punishment, irrespective of the good
faith or bad faith of the prosecution.’” United States v. Pendleton, 832 F.3d 934, 940 (8th Cir.
2016) (quoting Brady, 373 U.S. at 87)).
(citing Williams, 529 U.S. at 412–13). “A federal court may grant relief under the
‘unreasonable application’ clause if the state court correctly identified the

governing legal principle, but unreasonably applied it to the facts of the particular
case.” Jackson v. Norris, 651 F.3d 923, 925 (8th Cir. 2011) (citing Bell v. Cone,
535 U.S. 685, 694 (2002)). “A state court’s application of clearly established

federal law must be objectively unreasonable, and not merely incorrect, to warrant
the granting of a writ of habeas corpus.” Jackson, 651 F.3d at 925 (citing Bell,
535 U.S. at 694).
Finally, when reviewing whether a state court decision involves an

“unreasonable determination of the facts” in light of the evidence presented in the
state court proceedings, state court findings of basic, primary, or historical facts are
presumed correct unless the petitioner rebuts the presumption with clear and

convincing evidence. 28 U.S.C. § 2254(e)(1); Collier v. Norris, 485 F.3d 415, 423
(8th Cir. 2007). “[E]ven erroneous fact-finding by the [state] courts will not justify
granting a writ if those courts erred ‘reasonably.’” Weaver v. Bowersox, 241 F.3d
1024, 1030 (8th Cir. 2001).

The federal court is “bound by the AEDPA to exercise only limited and
deferential review of underlying State court decisions.” Lomholt v. Iowa, 327 F.3d
748, 751 (8th Cir. 2003). To obtain habeas relief from a federal court, the

petitioner must show that the challenged state court ruling “rested on an error well
understood and comprehended in existing law beyond any possibility for
fairminded disagreement.” Metrish v. Lancaster, 569 U.S. 351, 358 (2013)

(cleaned up). This standard is difficult to meet. Id. at 357-58.
A. Ground One: Sufficiency of the Evidence
In Ground One, Mitchell argues that he was denied due process and a fair

trial when the trial court overruled his motion for judgment of acquittal because the
State failed to make a submissible case of stealing. On direct appeal, the Missouri
Court of Appeals denied this claim as follows:
In his first point on appeal, Mitchell claims the trial court erred in denying
his motion for judgment of acquittal because the State failed to make a
submissible case of stealing. Mitchell contends the evidence was insufficient
to show beyond a reasonable doubt that he appropriated the property of
another without his or her consent. Specifically he argues the money he
received was not owned by DeWitt, and he should have been charged with
commercial bribery instead of stealing.

We review the trial court’s decision to deny a motion for judgment of
acquittal to determine whether the State presented sufficient evidence to
make a submissible case. State v. Bayless, 369 S.W.3d 115, 118 (Mo. App.
W.D. 2012). In determining whether there was sufficient evidence to
support a conviction, we accept all evidence and reasonable inferences
favorable to the verdict as true and we disregard evidence and inferences to
the contrary. Id. The jury determines the weight and credibility of witness
testimony, and we do not substitute our judgment for that of the jury. Id.
Our review is limited only to determining whether there was sufficient
evidence from which a reasonable trier of fact could find the defendant
guilty beyond a reasonable doubt. Id.

Mitchell was charged with stealing pursuant to Section 570.030.1. Pursuant
to the statute, a person commits the crime of stealing “if he or she
appropriates the property or services of another with the purpose to deprive
him or her thereof, either without his or her consent or by means of deceit
or coercion.” Here, the State charged Mitchell with stealing without
consent. In claiming there was insufficient evidence to support his
conviction of stealing, Mitchell argues he should have been charged with
commercial bribery pursuant to Section 570.150 RSMo (2000). However,
as the State notes, the prosecutor has discretion to determine the charge to
be made against a defendant. State v. Murray, 925 S.W.2d 492, 493 (Mo.
App. E.D. 1996). According to Mitchell, there was insufficient evidence to
support this charge because DeWitt did not own the money Mitchell
received from KT America. We disagree.

Section 570.010(11) RSMo (Cum. Supp. 2002) states, in relevant part, that
property is “of another” where the individual or corporation has a
“possessory or proprietary interest therein . . . .” Here, Mitchell argues
DeWitt did not own the money he received from KT America because it
had been paid to KT America for fabric, and it then belonged to Rajiv
Toprani as the owner of KT America. Toprani was simply giving Mitchell
the money after the business transaction between DeWitt and KT America
was concluded. However, this argument ignores the definition of property
“of another” set forth in the statute. DeWitt had a proprietary interest in the
percentage of the invoice returned to Mitchell from KT America, and there
was sufficient evidence to establish this fact. Toprani, the owner of KT
America, testified at trial that he believed the percentage of the invoice
amount he returned to Mitchell through Global Census was going back to
DeWitt. According to Toprani, he would have sold the product for that
percentage less to DeWitt if he had known it was not being returned to the
company. In addition, Larry DeWitt, the president and CEO of DeWitt,
testified Toprani informed him he could have gotten the materials for less
from KT America.

Based upon the foregoing evidence, the State presented proof that DeWitt
had a proprietary or possessory interest in the money received by Mitchell
to satisfy the requirement that the property stolen be “of another.” See
Section 570.010(11). Thus, there was sufficient evidence from which a
reasonable juror could have found Mitchell guilty of stealing, and the trial
court did not err in denying his motion for judgment of acquittal. Point one
on appeal is denied.

Mitchell, 407 S.W.3d at 665-66; ECF 9-7.
The Due Process Clause prohibits the conviction of an accused “except upon
proof beyond a reasonable doubt of every fact necessary to constitute the crime

with which he is charged.” In re Winship, 397 U.S. 358, 364 (1970). In the
context of deciding a § 2254 claim, the court must consider “whether, after
viewing the evidence in the light most favorable to the prosecution, any rational

trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in
original); see also Evans v. Luebbers, 371 F.3d 438, 441 (8th Cir. 2004). The
scope of habeas review of such a claim is “extremely limited.” Skillicorn v.

Luebbers, 475 F.3d 965, 977 (8th Cir. 2007). This means that “a reviewing court
faced with a record of historical facts that supports conflicting inferences must
presume—even if it does not affirmatively appear in the record—that the trier of

fact resolved any such conflicts in favor of the prosecution, and must defer to that
resolution.” McDaniel v. Brown, 558 U.S. 120, 133 (2010) (cleaned up).
This Court may grant federal habeas relief only if the Missouri Court of
Appeals’ determination that the evidence satisfied the sufficiency of evidence

standard was “both incorrect and unreasonable” under Jackson. Garrison v. Burt,
637 F.3d 849, 855 (8th Cir. 2011).
Here, the state court reasonably determined that, viewing the evidence in the

light most favorable to the verdict, there was sufficient evidence to support
Mitchell’s conviction for stealing. The jury heard evidence that DeWitt had a
proprietary or possessory interest in the money being paid to Mitchell by Toprani

from both Toprani and DeWitt president Larry DeWitt. Richard Potter, accounting
manager of the DeWitt Company, also testified that he was involved in “helping
[Mitchell] steal from the Dewitt Company” by registering the “fictitious

company” Global Census. ECF 9-1 at 16-18. Potter and Mitchell were both listed
as owners of Global Census and profits were split 60% to Mitchell and 40% to
Potter. Id. Potter further testified that payments from KT America were wired into
a Bank of America account that he set up. Id. at 20–21. Potter admitted that he did

not receive permission from Larry DeWitt to engage in this kickback scheme and
that he believed DeWitt was unaware of any payments from KT America to Global
Census. Id. at 51. Larry Dewitt testified that he had no knowledge of the scheme

and would not have given Mitchell or Potter permission to engage in the kickback
scheme. Id. at 114–15. Larry DeWitt told the jury that, upon being confronted
with the kickback allegation, Toprani offered the DeWitt Company an instant 5%
discount. Id. at 115–16. DeWitt stated that after they switched from Toprani the

DeWitt Company experienced “big savings.” Id. at 117.
Two employees of the Dewitt Company then testified that Mitchell handled
all purchases from KT America. ECF 9-1 at 125–26. Maria Alvey, a purchasing

assistant to Mitchell, stated that she asked Mitchell why the company was
purchasing from KT America when other companies offered the same or better
prices and more competitive order-fulfillment times. Id. at 126. She said that at

times he would not respond and other times he would simply claim that the overall
pricing with KT America was better. Id. at 127. Tim Meredith, the Vice-President
of Sales, testified that Mitchell did not take any competitive proposals on fabric

and that KT America was the sole vendor of that class of items. Id. at 134–35.
Alvey also told the jury that Mitchell purchased items from KT America which the
company could not even use and that after Mitchell left, the company realized
instant savings by switching to other vendors. Id. at 127-128.

Toprani testified that in the beginning of the business relationship, KT
America sold very few items to the DeWitt Company. ECF 9-1 at 90. He stated
that Mitchell approached him and indicated that if he was willing to provide

Mitchell a percentage of the sales invoice, Mitchell would direct orders from the
company to KT America. Id. Toprani initially refused, but later agreed to a
kickback of 1.5%. Id. at 90–91. Toprani indicated that once he agreed, the sales to
the DeWitt Company increased to approximately seven or eight million dollars per

year. Id. at 91. Toprani stated that at the beginning of each season he would
receive a phone call setting the kickback request for all purchases made in that
period. Id. at 94. Toprani testified that he was unaware that the money was not

going to the DeWitt Company. Id. at 96.
After they discovered that law enforcement was investigating the kickbacks,
Mitchell and Potter came to Clarksville, Tennessee, to discuss the issue with

Toprani. ECF 9-1 at 97. Toprani testified that Mitchell and Potter told him that, if
he was questioned by law enforcement, he should say that the payments were made
for consulting fees. Id. Toprani stated that they then asked him to issue invoices

for consulting fees. Id. Toprani testified that none of the challenged payments
were made for consulting fees. Id. Instead, Toprani stated that he believed the
payments were going back to the DeWitt Company and that he would have sold
the items for less in the absence of the requested kickback because “every time we

sold the goods, we would always take into consideration what was going to be the
percentage on their invoice. Every time.” Id.
There is ample evidence for a rational jury to infer that Mitchell took

property in which the Dewitt Company had a proprietary interest. In denying this
ground on appeal, the Missouri Court of Appeals correctly identified the governing
legal standards, and its determination that there was sufficient evidence to convict
Mitchell of stealing was not an incorrect or unreasonable application of Winship

and Jackson. See 28 U.S.C. § 2254(d)(1). As the appellate court’s determination
also did not involve an unreasonable determination of the facts in light of the
evidence presented in the state court proceedings, see 28 U.S.C. § 2254(d)(2), the

decision is entitled to deference.
Mitchell’s arguments that the appellate court should have decided the factual
and legal issues differently are insufficient to meet the difficult standard of

showing the state court ruling “rested on an error well understood and
comprehended in existing law beyond any possibility for fairminded
disagreement.” Metrish, 569 U.S. at 357-58 (cleaned up). Ground One of

Mitchell’s habeas petition is denied.
B. Ground Two: Counsel’s Failure to Subpoena Documents
In Ground Two, Mitchell alleges that his counsel provided ineffective
assistance by failing to subpoena records that would have demonstrated that he

“did not take anything of value from Dewitt that a jury could find him guilty of
stealing.” ECF 2 at 15.
The Missouri Court of Appeals considered and rejected this claim on appeal

of the denial of post-conviction relief as follows:
To prevail on a claim of ineffective assistance of counsel, a movant must
prove “by a preponderance of the evidence that (1) defense counsel failed to
exercise the level of skill and diligence that reasonably competent counsel
would exercise in a similar situation and (2) the movant was prejudiced by
that failure.” Hoeber v. State, 488 S.W.3d 648, 655 (Mo. banc 2016), citing
Strickland v. Washington, 466 U.S. 668, 687 (1984). If a movant fails to
satisfy either prong of the Strickland test, he or she is not entitled to post-
conviction relief. Hoeber, 488 S.W.3d at 655. To satisfy the performance
prong, a movant must overcome the strong presumption that counsel’s
conduct was reasonable and effective by “pointing to specific acts or
omissions of counsel that, in light of all the circumstances, fell outside the
wide range of professional competent assistance.” Id. To satisfy the
prejudice prong, a movant must show a reasonable probability that, but for
counsel’s errors, the outcome of the proceeding would have been different.
Id. A reasonable probability exists where there is a probability sufficient to
undermine confidence in the outcome. Id.

In Point I, Movant argues trial counsel was ineffective for failing to
subpoena certain documents he requested that would have supported his
defense at trial. Specifically, Movant argues trial counsel’s decision not to
obtain these records could not have been reasonable trial strategy because
trial counsel decided the documents would not support Movant’s defense
without knowing what the documents contained. We disagree.

“‘To succeed on a claim of ineffective assistance for failure to investigate, a
movant is required to: (i) specifically describe the information his attorney
failed to discover, (ii) establish that a reasonable investigation by trial
counsel would have resulted in the discovery of such information, and (iii)
prove that the information would have aided or improved his position at
trial.’” Frazier v. State, 431 S.W.3d 486, 494 (Mo. App. E.D. 2014), quoting
Cornelious v. State, 351 S.W.3d 36, 46 (Mo. App. W.D. 2011). “Where a
post-conviction claim is based on trial counsel’s failure to investigate or call
a witness at trial, proof of prejudice requires a persuasive connection
between the absent testimony and a viable defense.” Martin v. State, 526
S.W.3d 169, 194 (Mo. App. W.D. 2017).

“The selection of witnesses and evidence are matters of trial strategy,
virtually unchallengeable in an ineffective assistance claim.” Covington v.
State, 569 S.W.3d 469, 475 (Mo. App. E.D. 2018). “[W]hen trial counsel
believes a witness’s testimony would not unequivocally support his client’s
position, it is a matter of trial strategy not to call him, and the failure to call
such witness is not ineffective assistance.” Id.

The records at issue in this case include a list of financial documents Movant
sent to trial counsel by email prior to trial. Movant asserts these documents
show DeWitt did not pay inflated prices for products ordered from KT.
There is no dispute that Movant has specifically described the documents he
alleges trial counsel failed to discover, and a reasonable investigation by trial
counsel would have resulted in the discovery of these documents. Therefore,
the only question is whether trial counsel’s decision that the documents
would not have aided or improved Movant’s position at trial was a
reasonable choice of trial strategy.
At the evidentiary hearing, trial counsel testified he had already received
four Bankers Boxes full of discovery from the State, one of which was filled
with invoices, bank statements, and other financial documents. Trial counsel
explained that he did not subpoena the documents requested by Movant
because he “wasn’t convinced that gathering up all this kind of information
was going to be beneficial in the long run given what this case was about.”
Trial counsel stated he “didn’t think [the information] was going directly to
what the theory of the defense was” and his opinion was that it was not
“going to help us succeed.” Trial counsel further explained “there wasn’t
any evidence that [Toprani] was padding his invoices to pay the kickbacks to
[Movant]” and “obtaining additional invoices and having the accountant
look at them could at most say the same thing that Toprani said at trial[.]”

Based on this testimony, the motion court concluded trial counsel was not
ineffective for failing to subpoena the records requested by Movant because
this was a reasonable choice of trial strategy, and Movant failed to establish
prejudice because there was no evidence the records would have altered the
outcome of the trial. After reviewing the record, we cannot say this
conclusion is clearly erroneous. See Covington, 569 S.W.3d at 476 (where
there is no reasonable probability that a potential witness’s testimony would
have altered the results of the trial, trial counsel’s decision not to call the
witness is sound trial strategy that did not prejudice Movant).

Although trial counsel did not independently obtain the records as requested
by Movant, trial counsel had sufficient information from the Bankers Box
full of financial documents to make a reasonable decision regarding whether
the specific documents identified by Movant would aid Movant’s defense at
trial. The State’s case did not depend on proving that KT was charging
inflated prices to DeWitt. The fact that KT’s prices were commercially
reasonable was undisputed at trial based on Mr. Toprani’s testimony that he
was charging less than competitors and not inflating his prices to pay
kickbacks to Movant. Therefore, documents confirming Mr. Toprani’s
testimony would not have undermined any part of the State’s case and would
have been cumulative to the uncontested testimony of Mr. Toprani.

Movant argues the trial court’s decision is erroneous because trial counsel’s
decision not to subpoena the documents he requested could not have been a
reasonable choice of trial strategy because trial counsel decided the
documents were irrelevant without knowing their content. We disagree. As
stated above, trial counsel had sufficient information available to him to
make a strategic decision regarding whether to subpoena additional financial
documents based on the Bankers Boxes of invoices and other financial
documents he received in discovery. The fact that KT was not charging
DeWitt inflated prices was not a contested issue at trial, and the State’s
theory of the case did not depend on inflated prices. As the motion court
noted, “Toprani testified [at trial] that he believed the prices charged to
DeWitt were commercially fair and reasonable, and that they probably beat
all of the competitors[; t]herefore], no further evidence needed to be
presented at trial by the defense to establish that DeWitt Company was not
paying KT excessive prices for materials.”

For the foregoing reasons, we find the trial court did not clearly err in
concluding trial counsel was not ineffective for deciding not to subpoena the
records requested by Movant. Trial counsel’s decision was a reasonable
choice of trial strategy and Movant has failed to establish any prejudice from
the failure to obtain these records. See Covington, 569 S.W.3d at 476. Point I
is denied.

ECF 9-18.
Mitchell’s ineffective assistance of trial counsel claims are governed by
Strickland v. Washington, 466 U.S. 668 (1984). Strickland established a two-
prong test to determine when counsel’s ineffective performance violates the Sixth
Amendment. On the first prong, petitioner “must show that counsel’s performance
was deficient. This requires showing that counsel made errors so serious that
counsel was not functioning as the ‘counsel’ guaranteed by the Sixth Amendment.”
Id. at 687. The second prong requires petitioner to “show that the deficient
performance prejudiced the defense.” Id. To demonstrate prejudice, a petitioner
must show “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. In
applying Strickland’s two prongs, the Supreme Court has cautioned that “[j]udicial

scrutiny of counsel’s performance must be highly deferential,” id. at 689, and that
reviewing courts should indulge a strong presumption that counsel’s actions fell
within the “wide range of professionally competent assistance.” Id. at 690.

“Taken together, AEDPA and Strickland establish a ‘doubly deferential
standard’ of review.” Williams v. Roper, 695 F.3d 825, 831 (8th Cir. 2012)
(quoting Cullen v. Pinholster, 563 U.S. 170, 202 (2011)). This means that Mitchell
must do more than “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) (cleaned up). “Rather, he must show that the [Missouri Court of Appeals]
applied Strickland to the facts of his case in an objectively unreasonable manner.”

Id. at 699.
The Missouri Court of Appeal’s decision is not an unreasonable application
of Strickland. “Under Strickland, ‘strategic choices made after thorough
investigation of law and facts relevant to plausible options are virtually

unchallengeable; and strategic choices made after less than complete investigation
are reasonable precisely to the extent that reasonable professional judgments
support the limitations on investigation.’” Hinton v. Alabama, 571 U.S. 263, 274

(2014) (quoting Strickland, 466 U.S. at 690–91). “In other words, counsel has a
duty to make reasonable investigations or to make a reasonable decision that
makes particular investigations unnecessary.” Id. (quoting Strickland, 466 U.S. at

691). Here, the Missouri Court of Appeals concluded that counsel’s performance
was not constitutionally deficient because he investigated the claim that KT
America was charging an outsized price compared to competitors and, after

reviewing the relevant information, made a reasonable decision that further
investigation of these financial documents was unnecessary. ECF 9-18.
Mitchell has failed to demonstrate that this is an unreasonable application of
Strickland. Although he argues that the appellate court’s conclusion is not

supported by testimony from trial counsel, this argument is refuted by the Missouri
Court of Appeal’s extensive reliance on quoted portions of trial counsel’s
testimony. ECF 9-18 at 8–9. Specifically, it found that counsel testified that “he

did not subpoena the documents requested by Movant because he ‘wasn’t
convinced that gathering up all this kind of information was going to be beneficial
in the long run given what this case was about’” and that “he ‘didn’t think [the
information] was going directly to what the theory of the defense was’ and his

opinion was that it was not ‘going to help us succeed.’” Id. at 8-9 (alteration in
original). As further found by the Missouri Court of Appeals, after reviewing
some evidence, trial counsel realized “‘there wasn’t any evidence that [Toprani]

was padding his invoices to pay the kickbacks to [Movant]’ and ‘obtaining
additional invoices and having the accountant look at them could at most say the
same thing that Toprani said at trial[.]’” Id. (alteration in original). As the

appellate court’s determination did not involve an unreasonable determination of
the facts in light of the evidence presented in the state court proceedings, see 28
U.S.C. § 2254(d)(2), the decision is entitled to deference.

Given this testimony, the Missouri Court of Appeals reasonably concluded
that counsel’s trial strategy was not ineffective because he had already obtained
facts that led him to believe that the requested documents would not be helpful to
the chosen theory of defense. Contrary to Mitchell’s assertion, trial counsel did

examine evidence of price gouging and found that further investigation was
unnecessary, and the appellate court’s determination that this was not an
unreasonable trial strategy is entitled to deference.6

The Missouri Court of Appeals also concluded that Mitchell could not
demonstrate prejudice because these documents would not have assisted counsel in
presenting a meritorious defense. This is not an objectively unreasonable
conclusion because whether KT America was charging more than its competitors

was immaterial to the State’s burden on the stealing charge at trial. Moreover, the

6 Mitchell’s reliance on the dissenting opinion in Chambers v. Armontrout, 907 F.2d 825, 835
(8th Cir. 1990) is unavailing because here the appellate court explicitly found that counsel
investigated before determining that the documents were unnecessary to his defense of the case.
Missouri Court of Appeals also found no prejudice because the evidence would
have been merely cumulative of Toprani’s testimony that he did not charge inflated

prices to DeWitt. The appellate court’s determination is not objectively
unreasonable as “the failure to present cumulative testimony is not contrary to, or
an unreasonable application of, federal law.” Winfield v. Roper, 460 F.3d 1026,

1034 (8th Cir. 2006) (cleaned up).
For these reasons, the Missouri Court of Appeal’s decision to deny relief on
Mitchell’s ineffective assistance of counsel claim is entitled to deference, and
Ground Two of Mitchell’s habeas petition is denied.

Procedurally Defaulted Claims: Grounds Three, Four, and Five
State prisoners must fairly present all claims to the state courts. When a
prisoner has gone through all stages of direct appeal and post-conviction

proceedings without presenting a claim to the state courts, that claim is
procedurally defaulted. Sweet v. Delo, 125 F.3d 1144, 1149 (8th Cir. 1997). This
means that a federal habeas court cannot hear the claim unless the prisoner
demonstrates “cause for the default and actual prejudice as a result of the alleged

violation of federal law, or that failure to consider the claim will result in a
fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750
(1991) (cleaned up).
Here, respondent argues that Mitchell procedurally defaulted his third,
fourth, and fifth grounds for relief by failing to present them to the Missouri courts.

Mitchell does not dispute that these claims were not properly presented but
contends that his procedural default is excused by the ineffective assistance of
post-conviction counsel under Martinez v. Ryan, 566 U.S. 1, 14 (2012). In

Martinez, the United States Supreme Court held that “ineffective assistance of
postconviction counsel is cause to forgive procedural default of an ineffective-
assistance-of-trial-counsel claim, but only if the State required the prisoner to raise
that claim for the first time during state postconviction proceedings.” Shinn v.

Ramirez, 142 S. Ct. 1718, 1728 (2022) (cleaned up).
“Out of respect for finality, comity, and the orderly administration of justice,
federal courts may excuse procedural default only if the prisoner can demonstrate

cause for the default and actual prejudice as a result of the alleged violation of
federal law.” Shinn, 142 S. Ct. at 1733 (cleaned up). To demonstrate cause, the
petitioner must “show that some objective factor external to the defense impeded
counsel’s efforts to comply with the State's procedural rule.” Murray v. Carrier,

477 U.S. 478, 488 (1986). To demonstrate prejudice, the petitioner must show that
the claimed constitutional violation “worked to his actual and substantial
disadvantage.” Id. at 494. A showing that the errors at trial created a “possibility

of prejudice” is not sufficient. Id. (quoting United States v. Frady, 456 U.S. 152,
170 (1982)). “If a prisoner fails to demonstrate cause, the court need not address
prejudice.” Cagle v. Norris, 474 F.3d 1090, 1099 (8th Cir. 2007).

With respect to the cause of default, “attorney error is an objective external
factor providing cause for excusing a procedural default only if that error
amounted to a deprivation of the constitutional right to counsel.” Davila v. Davis,

582 U.S. 521, 528 (2017) (citations omitted). Prior to Martinez, the general rule
was that the ineffective assistance of postconviction counsel could not constitute
cause for procedural default because there is no Sixth Amendment right to
postconviction counsel. Id. The Supreme Court created a narrow exception to this

rule in Martinez and held that “a procedural default will not bar a federal habeas
court from hearing a substantial claim of ineffective assistance at trial if, in the
initial-review collateral proceeding, there was no counsel or counsel in that

proceeding was ineffective.” 566 U.S. at 17.
The Martinez exception applies where state law explicitly prohibits prisoners
from bringing claims of ineffective assistance of trial counsel on direct appeal, and
where the “state procedural framework, by reason of its design and operation,

makes it highly unlikely in a typical case that a defendant will have a meaningful
opportunity to raise a claim of ineffective assistance of trial counsel on direct
appeal.” Trevino v. Thaler, 569 U.S. 413, 429 (2013).
A petitioner such as Mitchell claiming ineffective assistance of post-
conviction counsel as the cause for his procedural default of his ineffective

assistance of trial counsel claims must demonstrate the following: (1) the claim of
ineffective assistance of trial counsel was a “substantial” claim; (2) the “cause”
consisted of either “no counsel” or only “ineffective” counsel during the state

collateral review proceeding; and, (3) the state collateral review proceeding was
the “initial” review proceeding with respect to the “ineffective-assistance-of-trial-
counsel claim.” Marcyniuk v. Payne, 39 F.4th 988, 996 (8th Cir. 2022) (cleaned
up). Mitchell meets the third part of the test with respect to Grounds Three and

Four because under Missouri law, a post-conviction proceeding is the exclusive
procedure for pursuing an ineffective assistance of counsel claim. Moore-El v.
Luebbers, 446 F.3d 890, 896 (8th Cir. 2006); Mo. S. Ct. Rule 29.15(a).

C. Ground Three: Ineffective Assistance of Counsel for failure to depose
witnesses and discover an audio recording

In Ground Three, Mitchell asserts he was denied effective assistance of
counsel under the Sixth and Fourteenth Amendments of the United States
Constitution when trial counsel failed to depose or adequately investigate the
State’s witnesses and to discover an audio recording of their prior inconsistent
statements that would have supported Mitchell’s theory of defense. Mitchell
argues that if counsel had deposed and/or adequately investigated Toprani, Larry
DeWitt, and Meredith DeWitt, he would have obtained statements that
contradicted their trial testimony and/or discovered the audio recording statements
made by Toprani.

The audio recording in question is a meeting between Toprani and members
of DeWitt Company, including Larry, Tim, and Meredith DeWitt and Shelly
DeLarosa. ECF 2-9. The recording is attached as an exhibit to the amended

habeas petition and appears in the record as Document 2-9. The parties have not
provided a transcript of the recording, but the Court has listened to it as it was
produced as Exhibit 15 during the post-conviction motion hearing and is therefore
part of the state court record.

On the recording, the DeWitts confront Toprani about the payments he was
making to Mitchell through wire transfers to Global Census. Toprani denied that
the payments were bribes. Instead, he claimed that the payments to Mitchell were

for his numerous trips to India to help set up Toprani’s manufacturing business, for
consulting services, and a “finder’s fee,” although he could not state what Mitchell
had recently “found” for KT America. Toprani stated he never charged DeWitt
more because of the arrangement with Mitchell and then offered DeWitt a

discount. Toprani refused to provide DeWitt invoices between Mitchell and KT
America because Mitchell had threatened him.
During the evidentiary hearing held on Mitchell’s post-conviction motion,

counsel testified that part of his trial strategy was to argue that the money Mitchell
received from Toprani was not a kickback or bribe but compensation for
“consulting services” Mitchell provided to KT. According to Mitchell, if trial

counsel had adequately prepared for trial, he would have discovered this audio
recording which would have supported this defense theory and impeached the
credibility of Toprani. Mitchell argues that he is entitled to develop and present

this ground for relief on federal habeas review under Martinez because he raises a
substantial ground of ineffective assistance of trial counsel and postconviction
counsel was ineffective in failing to properly raise it.7 Mitchell further asserts that
because the claim is substantial, this Court should conduct an evidentiary hearing

to determine its merits. ECF 22 at 8.
The Supreme Court recently held that under 28 U.S.C. § 2254(e)(2), “a
federal habeas court may not conduct an evidentiary hearing or otherwise consider

evidence beyond the state-court record based on ineffective assistance of state
postconviction counsel.” Shinn, 142 S. Ct. at 1734. Instead, “a federal court may
order an evidentiary hearing or otherwise expand the state-court record only if the
prisoner can satisfy § 2254(e)(2)’s stringent requirements.” Id. at 1735. Thus,

while Martinez can excuse procedural default and permit a petitioner to raise an

7 Although the argument was raised in Mitchell’s second amended Rule 29.15 motion, the post-
conviction motion court refused to consider it under Gittemeier, 527 S.W.3d at 71. This
argument was also raised on appeal of the denial of Rule 29.15 relief. The appellate court also
refused to consider this claim for the same reason, concluding that it was not preserved for
appeal because it was not raised in Mitchell’s timely pro se Rule 29.15 motion. ECF 9-18 at 11-
12.
ineffective assistance of trial counsel claim in federal habeas, it does not permit
factual development outside the state court record to prove that claim.

Consequently, for a claim raised under Martinez to warrant a hearing, the
petitioner must meet the standard set out in § 2254(e)(2):
If a prisoner has failed to develop the factual basis of a claim in State court
proceedings, a federal court shall not hold an evidentiary hearing on the
claim unless the prisoner satisfies one of two narrow exceptions, see 28
U.S.C. § 2254(e)(2)(A), and demonstrates that the new evidence will
establish his innocence by clear and convincing evidence. § 2254(e)(2)(B).
In all but these extraordinary cases, AEDPA bars evidentiary hearings in
federal habeas proceedings initiated by state prisoners.

Shinn, 142 S. Ct. at 1728 (cleaned up). The two “narrow exceptions” are for
claims based on (i) “a new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously unavailable;” or (ii) “a
factual predicate that could not have been previously discovered through the
exercise of due diligence.” 28 U.S.C. § 2254(e)(2)(i), (ii).
In Shinn, the Supreme Court “explicitly rejects the idea that a federal court
may hold an evidentiary hearing to determine whether there is cause and
prejudice.” Marcyniuk, 39 F.4th at 999 (cleaned up). “[A] Martinez hearing is
improper if the newly developed evidence never would entitle the prisoner to
federal habeas relief.” Id. (quoting Shinn, 142 S. Ct. at 1739) (cleaned up).
Mitchell makes no argument that he can satisfy the narrow requirements of §

2254(e)(2), and the Court finds he cannot do so. First, the factual predicate on
which Ground Three is based was previously discovered during post-conviction
proceedings at the latest8 and was part of the public record in the case. This is fatal

to his request for an evidentiary hearing. Second, Mitchell cannot show that the
facts underlying this claim are sufficient to establish by clear and convincing
evidence that, but for constitutional error, no reasonable factfinder would have

found him guilty of the underlying offense. His request for an evidentiary hearing
is denied.
To determine whether Mitchell’s procedural default is excused, the Court
must determine if postconviction counsel was ineffective for failing to raise the

defaulted claim. To demonstrate ineffective assistance of postconviction counsel
as the cause for his procedural default, Mitchell must first establish that the
underlying claim of ineffective assistance of trial counsel was a “substantial”

claim. See Marcyniuk, 39 F.4th at 996.
“A substantial claim is one with some merit, and Martinez’s some-merit
requirement means that whether the claimant’s trial counsel was ineffective must at
least be debatable among jurists of reason.” Marcyniuk, 39 F.4th at 996 (cleaned

up). “Thus, to demonstrate that his ineffective assistance of trial counsel claim is
“substantial,” [Mitchell] must show that it is at least debatable among jurists of

8 As discussed below in connection with Ground Five, the existence of the audio recording was
disclosed by the prosecutor prior to trial, so the factual predicate was known before trial.
reason whether his trial counsel’s performance was deficient and whether this
deficient performance prejudiced him.” Id. (cleaned up).

Here, this requires Mitchell to show that, by failing to depose these
witnesses and discover (and then use) this audio recording, trial counsel’s
performance fell below the constitutional standard of competence, and prejudice

resulted. See Marcyniuk, 39 F.4th at 996. To establish prejudice, Mitchell “must
show not merely a substantial federal claim, such that the errors at trial created a
possibility of prejudice, but rather that the constitutional violation worked to his
actual and substantial disadvantage.” Shinn, 142 S. Ct. at 1733 (cleaned up).

Thus, Mitchell must establish a reasonable probability that, but for trial counsel’s
failure, he would not have been found guilty of stealing.
Mitchell cannot meet this standard because he was not prejudiced by trial

counsel’s alleged error. Toprani testified that after law enforcement began
investigating, Mitchell and Potter met with him and asked him to tell investigators
that all of the money was for “consulting.” ECF 9-1 at 97. Mitchell also asked
Toprani to fabricate evidence to support this lie. Id. Additionally, Toprani

testified that none of the challenged payments were made for consulting fees. Id.
Potter also testified that he had never consulted KT on anything. Id. at 50. In light
of that testimony, even if counsel had deposed employees of the Dewitt Company,

obtained the recording, and presented the recording as evidence to the jury, the
result of the proceeding would not have been different as this recording could be
viewed by the jury as evidence that Toprani lied about the money as requested by

Mitchell, consistent with Toprani’s testimony.
Even if the recording could have been used to impeach Toprani as
inconsistent with his testimony, the jury would have also heard Larry DeWitt

challenge Toprani’s version of events because Mitchell’s airfare and expenses
were paid by the DeWitt Company, not Toprani, when Mitchell was supposedly
“consulting” for Toprani. ECF 2-9 Part 1. Moreover, even though Toprani
characterized the payment as a finder’s fee, he could not identify what the fee was

actually for, further undermining the truth of his statement and reinforcing
Toprani’s testimony that the characterization of the payments as “consulting fees”
was a lie concocted by Mitchell in an attempt to conceal his crime. See id.

Toprani also stated that he considered Mitchell to be the buyer and that he was
willing to do what he required to sell more product. Id. The jury would have
heard Toprani refuse to provide Dewitt invoices between Mitchell and KT America
because Mitchell had threatened him. ECF 2-9, Part 2.

Moreover, Mitchell testified that he never told Larry DeWitt about this
alleged consulting arrangement with KT America. ECF 9-1 at 170. At trial,
Mitchell could not explain how he and KT decided his consulting fee or rate, nor
could he produce any records evidencing his alleged consulting relationship. Id. at
171-72.

In addition to Toprani, Mitchell’s co-conspirator Potter also testified at trial
and admitted “helping [Mitchell] steal from the Dewitt Company” by registering
the “fictitious company” Global Census. ECF 9-1 at 16-18. He also testified that

Mitchell told him he should claim that the money was for consulting services if the
arrangement was ever discovered, but Potter admitted that he had never consulted
for Toprani and that the payments he received were not for consulting work. ECF
9-1 at 50-54.

Under these circumstances, Mitchell cannot demonstrate a reasonable
probability that he would not have been found guilty of stealing if this recording
had been played to the jury given the overwhelming evidence against him and the

fact that the recording was equally (if not more) consistent with Mitchell’s guilt
and Toprani’s testimony that Mitchell asked him to lie about the payments to
conceal his crime.
Mitchell argues that the recording demonstrates that “DeWitt did not have

anything of value taken from it” because Toprani states he never charged DeWitt
more because of the arrangement with Mitchell. To the extent this is a rehashing
of the argument regarding the sufficiency of the evidence, it fails for the reasons

articulated by the Missouri Court of Appeals. Mitchell cannot have been
prejudiced by the failure to introduce evidence supporting meritless arguments.
See Sittner v. Bowersox, 969 F.3d 846, 853 (8th Cir. 2020) (failure to make

meritless arguments cannot support a claim of ineffective assistance).
Moreover, this testimony is not inconsistent with Toprani’s testimony that
he never overcharged DeWitt because of the kickback scheme with Mitchell. As

recognized by the Missouri Court of Appeals when affirming the denial of post-
conviction relief, “The State’s case did not depend on proving that KT was
charging inflated prices to DeWitt. The fact that KT’s prices were commercially
reasonable was undisputed at trial based on Mr. Toprani’s testimony that he was

charging less than competitors and not inflating his prices to pay kickbacks to
[Mitchell].” ECF 9-18. That Toprani’s price was better than market price was
immaterial to the stealing charge because Toprani testified that it could have been

even better absent the kickback. ECF 9-1 at 97 (Toprani: “Every time we sold the
goods, we would always take into consideration what was going to be the
percentage on their invoice. Every time.”).
Under these circumstances, Mitchell fails to demonstrate a reasonable

probability that he would have been found not guilty of stealing had counsel
deposed these witnesses and introduced this audio recording to the jury. For these
reasons, Mitchell fails to establish that Ground Three raises a substantial claim of

ineffective assistance of trial counsel. Mitchell has not shown cause and prejudice
under Martinez to excuse his procedural default of this claim. The Court will
dismiss Ground Three as procedurally barred.

D. Ground Four: Ineffective Assistance of Counsel for Failure to Convey Plea
Offer
In Ground Four, Mitchell asserts he was denied effective assistance of
counsel under the Sixth and Fourteenth Amendments of the United States
Constitution when trial counsel failed to inform him of a multi-tiered plea offer
which offered different plea options depending on the amount of restitution
Mitchell paid prior to sentencing. The three options all required Mitchell to

plead guilty to a felony, with the possibility of reducing the charge from Class B
to Class C and possible recommended sentences ranging from a suspended four-
year sentence to a 15-year sentence depending upon whether Mitchell repaid all

the money, more than one hundred thousand dollars, or less than one hundred
thousand dollars. ECF 9-25 at 14.
This claim is procedurally defaulted because the Missouri Court of Appeals

determined that it had not been preserved for appellate review:
Similarly, Movant’s pro se motion also failed to include his argument in
Point III, which asserted trial counsel was ineffective for “failing to inform
him of the letter with the State’s multi-tiered plea offer because [Movant]
would have been willing and able to accept one of the plea offers on the
letter[.]” The pro se motion alleged trial counsel was ineffective for
convincing Movant to reject a plea deal of which he was aware, and does not
allege either the existence of any “multi-tiered plea offer,” or trial counsel’s
failure to inform Movant of a plea offer from the State. Movant’s failure to
include these allegations in his pro se motion is fatal to this claim.
McLaughlin, 378 S.W.3d at 340. As above, this claim was waived and cannot
be considered on appeal. See Gittemeier, 527 S.W.3d at 71.
For the foregoing reasons, we find Points II and III are not preserved for
appeal and are, therefore, dismissed.

ECF 9-18 at 12. Mitchell does not dispute that the claim is procedurally defaulted
but argues that it is “substantial” under Martinez and post-conviction counsel was
ineffective in failing to properly raise it. He further contends that he is entitled to
an evidentiary hearing on this claim.
With respect to his request for a hearing, Mitchell makes no argument that
he can satisfy the narrow requirements of § 2254(e)(2). The Court finds he cannot

do so and is therefore not entitled to a hearing.
To determine whether Mitchell’s procedural default is excused, the Court
must determine if Mitchell has shown that post-conviction counsel was ineffective
for failing to raise the defaulted claim. To demonstrate ineffective assistance of

post-conviction counsel as the cause for his procedural default, Mitchell must first
establish that the underlying claim of ineffective assistance of trial counsel was a
“substantial” claim. See Marcyniuk, 39 F.4th at 996.

“A substantial claim is one with some merit, and Martinez’s some-merit
requirement means that whether the claimant’s trial counsel was ineffective must
at least be debatable among jurists of reason.” Marcyniuk, 39 F.4th at 996
(cleaned up). “Thus, to demonstrate that his ineffective assistance of trial counsel
claim is “substantial,” [Mitchell] must show that it is at least debatable among

jurists of reason whether his trial counsel’s performance was deficient and
whether this deficient performance prejudiced him.” Id. (cleaned up).
Here, this requires Mitchell to show that trial counsel was ineffective for

failing to inform him of the State’s multi-tier plea offer and that prejudice
resulted. See Marcyniuk, 39 F.4th at 996. To establish prejudice, Mitchell “must
show not merely a substantial federal claim, such that the errors at trial created a
possibility of prejudice, but rather that the constitutional violation worked to his

actual and substantial disadvantage.” Shinn, 142 S. Ct. at 1733 (cleaned up).
Thus, Mitchell must establish a reasonable probability that, but for trial counsel’s
failure to inform him of the State’s offer, he would not have gone to trial but

instead would have accepted one of the multi-tier offers.
“The Sixth Amendment right to effective assistance of counsel includes
representation during the plea bargaining process.” Mayfield v. United States, 955
F.3d 707, 711 (8th Cir. 2020) (citing Missouri v. Frye, 566 U.S. 134, 143-47

(2012)). “[T]he negotiation of a plea bargain is a critical phase of litigation for
purposes of the Sixth Amendment right to effective assistance of counsel.” Id.
(quoting Padilla v. Kentucky, 559 U.S. 356, 373 (2010)). “If a plea bargain has

been offered, a defendant has the right to effective assistance of counsel in
considering whether to accept it.” Id. (quoting Lafler v. Cooper, 566 U.S. 156,
168 (2012)). “[A]s a general rule, defense counsel has the duty to communicate

formal offers from the prosecution to accept a plea on terms and conditions that
may be favorable to the accused.” Frye, 566 U.S. at 145. Where “defense
counsel allowed a formal plea offer to expire without advising the defendant or

allowing him to consider it, defense counsel did not render the effective assistance
the Constitution requires.” Id.
“To show prejudice from ineffective assistance of counsel where a plea
offer has lapsed or been rejected because of counsel’s deficient performance,

defendants must demonstrate a reasonable probability they would have accepted
the earlier plea offer had they been afforded effective assistance of counsel.”
Frye, 566 U.S. at 147. “Defendants must also demonstrate a reasonable

probability the plea would have been entered without the prosecution canceling it
or the trial court refusing to accept it, if they had the authority to exercise that
discretion under state law.” Id. “To establish prejudice in this instance, it is
necessary to show a reasonable probability that the end result of the criminal

process would have been more favorable by reason of a plea to a lesser charge or
a sentence of less prison time.” Id.
Under Frye and Lafler, Mitchell bears the burden of demonstrating a

reasonable probability he would have accepted the plea offer if counsel had not
breached a duty. See Frye, 566 U.S. at 146-47; Lafler, 566 U.S. at 164; Allen v.
United States, 854 F.3d 428, 432 (8th Cir. 2017) (citing Frye and Lafler).

After review of the record, the Court finds that Mitchell cannot establish
either the deficient performance prong or the prejudice prong of Strickland.
Although the post-conviction motion court ultimately decided that it could not

review this precise claim under Gittemeier, it ruled on a related claim of whether
trial counsel was ineffective for advising Mitchell to reject another plea offer
made before trial. In the course of the evidentiary hearing on the post-conviction
motion, the motion court heard evidence of all plea deals offered by the

prosecutor, including the multi-tier plea offer. During the post-conviction
evidentiary hearing, Mitchell’s trial counsel testified that he recalled receiving the
multi-tier plea offer from the prosecutor and it was his normal practice to forward

any plea offer to his client. ECF 9-25 at 176. He further stated that while he did
not have a specific memory of discussing the multi-tier plea offer with Mitchell,
“any plea offer is going to be discussed with a client.” Id. at 176. Trial counsel
testified that in his thirty years of practice, he had never once ignored a plea offer

without first discussing the offer with his client. Id.
Mitchell also testified at the hearing. He denied knowing about the multi-
tier offer and claimed that he “would have considered” taking it had it been

offered to him by counsel. ECF 9-25 at 77. However, Mitchell also testified that
he was willing to plead to commercial bribery, a misdemeanor under Missouri
state law . Id. at 123. On cross-examination, Mitchell stated:

[STATE]: At most commercial bribery, that’s all you were willing to plead
to?

[MITCHELL]: If commercial bribery was brought to me, yes.

[STATE]: Okay. So if commercial bribery was brought to you and that
carried at most a misdemeanor, under no circumstances were you going to
plead to a felony, isn't that right, sir?

[MITCHELL]: Not if commercial bribery was brought up, no.

Id. at 123.

Following the hearing, the motion court denied Mitchell’s claim that
counsel provided ineffective assistance in “convincing [Mitchell] to reject a plea
agreement that was offered before trial, when rejecting the plea offer was not in
my best interest.” ECF 9-16 at 275. The motion court found that trial counsel
“testified at the evidentiary hearing that it is his regular practice to make sure that
any plea offer is discussed with a client. The Court does not believe that [trial
counsel] convinced [Mitchell] to reject a plea offer against his will. Rather, this
Court finds and concludes that [Mitchell], under no circumstances, was going to
plead guilty to a felony, and the prosecuting attorney was not willing to offer him
a misdemeanor.” Id. at 275–76.
The motion court’s factual and credibility determinations are presumed
correct, see 28 U.S.C. § 2254(e)(1) and are dispositive of Ground Four. The

motion court specifically found, after hearing both witnesses testify, that it did not
believe trial counsel failed to inform Mitchell of any plea offer (which included
the multi-tier plea offer) and that the refusal of any plea offer was solely a result

of Mitchell refusing to plead to anything more than a misdemeanor. Because the
multi-tier plea offer required Mitchell to plead to guilty to a felony, “under no
circumstances” would Mitchell have accepted it. These factual findings are fatal
to both the performance and prejudice prongs of Strickland.

Mitchell urges the Court to disregard the motion court’s factual findings as
erroneous, but merely pointing to contrary evidence in the record does not
provide this Court with the clear and convincing evidence required by 28 U.S.C. §

2254(e)(1) to disturb these factual findings. Wood v. Allen, 558 U.S. 290, 302–03
(2010). Mitchell’s insistence that he would have accepted the offer does not meet
this exacting standard, especially since he already made this claim to the motion
court, which, after hearing him testify and judging his credibility, determined that

Mitchell would never have accepted any offer which required him to plead guilty to
a felony. This Court is bound by the motion court’s findings. Marshall v.
Lonberger, 459 U.S. 422, 434 (1983) (“28 U.S.C. § 2254(d) gives federal habeas
courts no license to redetermine credibility of witnesses whose demeanor has been
observed by the state trial court, but not by them.”).

Mitchell cannot prove that his counsel provided constitutionally deficient
performance because he cannot demonstrate that counsel failed to convey the
multi-tiered plea offer. Mitchell is also unable to demonstrate that he was

prejudiced because the motion court determined that Mitchell would have never
accepted any offer that was not a misdemeanor offer, which includes the multi-tier
plea offer. Mitchell therefore cannot demonstrate that he would have accepted the
plea offer, foreclosing a finding of prejudice.

Mitchell has not established that defense counsel failed to render effective
assistance with respect to a plea offer or that he was prejudiced as a result. For

these reasons, Mitchell fails to establish that Ground Four raises a substantial
claim of ineffective assistance of trial counsel. Mitchell also fails to demonstrate
that he can satisfy the requirements of § 2254(e)(2). As such, he is not entitled to
an evidentiary hearing on his ineffective assistance of trial counsel claim related

to the plea offer.
Mitchell has not shown cause and prejudice under Martinez to excuse his
procedural default of this claim. The Court will dismiss Ground Four as

procedurally barred.
E. Ground Five: Brady violation
In his fifth claim, Mitchell alleges that the State failed to disclose material
exculpatory and impeaching evidence regarding audiotapes of prior inconsistent

statements of trial witnesses. The recordings in question are those discussed above
in connection with Ground Three. The existence of the audio recordings was
disclosed by the prosecutor prior to trial in 404 pages of discovery. ECF 9-25 at

12, 17-18. Page 182 of the discovery is a police report which lists “Reggie Toprani
Recording” and describes a recording of a meeting between Reggie Toprani and
members of the DeWitt Company made by Meredith DeWitt and transferred onto a
compact disc. ECF 2-8. The contents of the recording are not summarized on the

report. ECF 2-8. The compact disc was not included as part of the disclosures but
was available if requested. ECF 9-25 at 19.
Mitchell argues that this disclosure did not fulfill the State’s obligation under

Brady. In support of this argument Mitchell relies on cites United States v.
Skilling, 554 F.3d 529, 577 (5th Cir. 2009), aff’d in part and vacated in part on
other grounds, 561 U.S. 358 (2010), to argue that the State’s production of an
“open file” essentially hid this exculpatory evidence from him. Respondent argues

that this claim is procedurally defaulted because it was not raised either on direct
appeal or in post-conviction proceedings. Mitchell concedes the claim is defaulted
but urges the Court to consider it under Martinez. Respondent responds that

Mitchell cannot invoke Martinez to avoid the procedural bar of this claim because
it could have been raised on direct appeal and is not the type of claim to which
Martinez applies, citing Davila v. Davis, 582 U.S. 521, 529 (2017) (declining to

extend Martinez to claims of ineffective assistance of appellate counsel on the
ground that Martinez provided only a “narrow, equitable qualification” to the well-
settled law of procedural default for claims of ineffective assistance of trial

counsel).
In Missouri, known Brady claims are cognizable on direct appeal where the
record is properly before the court or the facts are uncontroverted. See State v.
Parker, 198 S.W.3d 178, 181 (Mo. Ct. App. 2006). Such is the case here, where

the existence of the recording was disclosed before trial and the only issue relates
to the adequacy of the disclosure. Therefore, Martinez does not apply to Mitchell’s
fifth claim, which remains procedurally defaulted.9 Because Mitchell has not

shown adequate cause and prejudice sufficient to avoid the procedural bar, the
Court will dismiss Ground Five as procedurally barred.
The claim is also meritless. “Under Brady v. Maryland, ‘suppression by the
prosecution of evidence favorable to an accused . . . violates due process where the

evidence is material either to guilt or to punishment, irrespective of the good faith

9 Mitchell also cites McCleskey v. Zant, 499 U.S. 467, 501-02 (1991), in his attempt to avoid the
procedural default, but it is equally unavailing. As in McCleskey, here there is no evidence or
allegation that the alleged Brady material was withheld from Mitchell such that he was precluded
from raising the claim on direct appeal.
or bad faith of the prosecution.’” United States v. Pendleton, 832 F.3d 934, 940
(8th Cir. 2016) (quoting Brady, 373 U.S. at 87). “Evidence is material if there is a

reasonable probability that, had the evidence been disclosed to the defense, the
result of the proceeding would have been different.” United States v. Keys, 721
F.3d 512, 520 (8th Cir. 2013) (cleaned up). “A reasonable probability of a

different result is shown when the government’s failure to disclose undermines
confidence in the outcome of the trial.” United States v. Jeanpierre, 636 F.3d 416,
423 (8th Cir. 2011) (cleaned up).
In Strickler v. Greene, 527 U.S. 263 (1999), the Supreme Court set out the

three elements of a Brady violation: (1) the evidence at issue must be favorable to
the accused, either because it is exculpatory, or because it is impeaching; (2) the
evidence must have been suppressed by the State, either willfully or inadvertently;

and (3) prejudice must have ensued. Id. at 281-82.
“Brady imposes no obligation on the State to reveal the exculpatory nature
of the evidence being turned over but only requires complete disclosure to the
defense . . . . To rule otherwise would impose a duty on the prosecution to do the

defense’s work, and broaden Brady beyond its dictate of disclosure to include a
requirement as to the manner of the disclosure.” Odem v. Hopkins, 192 F.3d 772,
777 (8th Cir. 1999).
Here the evidence was not suppressed. The state disclosed the existence of a
recording of a key witness prior to trial and it was made available upon request by

counsel. The amount of discovery produced was manageable in length and not of
the type that could constitute “effective concealment” of exculpatory evidence. As
the Skilling10 court recognized in rejecting defendant’s claim that the

“voluminosity of the government’s open file prevented him from effectively
reviewing the government’s disclosure,” 554 F.3d at 577, “as a general rule the
government is under no duty to direct a defendant to exculpatory evidence within a
larger mass of disclosed evidence” because it “is not required to facilitate the

compilation of exculpatory material that, with some industry, defense counsel
could marshal on their own.” Id. (cleaned up).
Mitchell also cannot demonstrate that the evidence is material under Brady.

For the same reasons previously discussed in connection with Ground Three,
Mitchell cannot demonstrate a reasonable probability that he would not have been
found guilty of stealing if this recording had been played to the jury given the
overwhelming evidence against him and the fact that the recording was equally (if

not more) consistent with Mitchell’s guilt and Toprani’s testimony that Mitchell
asked him to lie about the payments to conceal his crime.

10 The government’s open file in Skilling consisted of “several hundred million pages of
documents.” 554 F.3d at 576. The pretrial discovery produced by the State in this case totaled
404 pages.
Because there was no Brady violation, Ground Five is also denied as
meritless.

Certificate of Appealability
When a petitioner is denied a writ of habeas corpus under 28 U.S.C. § 2254,
the petitioner may not appeal unless granted a certificate of appealability. 28

U.S.C. § 2253(c)(1)(A). To be entitled to a certificate of appealability, the
petitioner must make a substantial showing of the denial of a constitutional right.
§ 2253(c)(2); see Tiedeman v. Benson, 122 F.3d 518, 522 (8th Cir. 1997). A
showing is substantial when the issues raised are debatable among reasonable

jurists, a court could resolve the issues differently, or the issues deserve further
proceedings. Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997). Because I find
none of these to be the case, I will deny a certificate of appealability on all claims.

Accordingly,
IT IS HEREBY ORDERED that the petition of Jason Mitchell for writ of
habeas corpus pursuant to 28 U.S.C. § 2254 [1] is denied as moot.
IT IS FURTHER ORDERED that the amended petition of Jason Mitchell

for writ of habeas corpus pursuant to 28 U.S.C. § 2254 [2] 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 grant a

certificate of appealability.
A separate judgment in accordance with the Memorandum and Order is
entered this same date.

Pett, 0 Low,
CATHERINE D.PERRY //
UNITED STATES DISTRICT JUDGE
Dated this 26th day of June, 2023.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10238864. Public record. Not legal advice.