Laramore v. Stange

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

SOUTHEASTERN DIVISION

DENNIS LYNN LARAMORE, )

)

Petitioner, )

)

v. ) No. 1:21-CV-00013 SPM

)

BILL STANGE, )

)

Respondent. )

MEMORANDUM AND ORDER

This matter is before the undersigned on the petition of Missouri state prisoner Dennis

Lynn Laramore (“Petitioner”) for a writ of habeas corpus pursuant to 28 U.S.C.A. § 2254 (Doc.

1). The parties have consented to the jurisdiction of the undersigned United States Magistrate

Judge pursuant to 28 U.S.C.A. § 636(c)(1) (Doc. 1). Petitioner filed a motion requesting an

evidentiary hearing and appointment of counsel (Doc. 19) and a Memorandum to Clerk re:

Court’s Mistake as to Doc. 21, Memorandum & Order (Doc. 22). For the following reasons, the

petition will be dismissed and Petitioner’s subsequent motions will be denied.

I. BACKGROUND

Petitioner is a Missouri state prisoner currently serving a twenty-year sentence for

unlawful possession of a firearm pursuant to a 2017 conviction. In his petition for a writ of

habeas corpus pursuant to 28 U.S.C. § 2254, Petitioner raised five grounds for habeas relief: (1)

that the trial court did not permit him to proceed pro se at his trial; (2) that the trial court violated

his protection against double jeopardy when he was convicted of eight separate counts of

possession of a firearm; (3) that the state did not present sufficient evidence at trial to prove his

guilt beyond a reasonable doubt; (4) that his appellate counsel was ineffective in not briefing the

issue of whether a docket sheet could be used as evidence to show that Petitioner was a prior and

persistent offender; and (5) that Petitioner was denied a fair and impartial jury because three

venirepersons demonstrated bias against him during voir dire (Doc. 1). Respondent argued that

all five grounds for relief should be denied, because Grounds 1, 2, and 5 have been procedurally

defaulted and Grounds 3 and 4 were reasonably adjudicated on the merits in state court (Doc. 8).

After the response was filed, Petitioner filed two Motions to File Supplemental Exhibits

Out of Time with Leave of Court, asking the Court to supplement the record with various

exhibits (Doc. 10, 11). The Court denied those requests, without prejudice, finding that Petitioner

had not shown how they were relevant to any of the claims in the petition and that Petitioner had

not set forth any facts or arguments from which the Court could determine whether expansion of

the record was permissible under the relevant legal requirements (Doc. 15). Petitioner refiled the

Requests to File Supplemental Exhibits Out of Time with Leave of Court, again asking the Court

to supplement the record with various exhibits (Doc. 16). The Court denied Petitioner’s motion,

with prejudice (Doc. 21). Petitioner then filed a Motion Requesting an Evidentiary Hearing and

Appointment of Counsel (Doc. 19), and a Memorandum to Clerk re: Court’s Mistake as to Doc.

21 Memorandum & Order (Doc. 22).

II. LEGAL STANDARDS

A. LEGAL STANDARD FOR REVIEWING CLAIMS ON THE MERITS

An individual in custody under the judgment and sentence of a state court may seek

habeas relief under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28

U.S.C. § 2254(a), “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). Federal habeas review exists only “as

‘a guard against extreme malfunctions in the state criminal justice systems, not a substitute for

ordinary error correction through appeal.’” Woods v. Donald, 575 U.S. 312, 316, (2015) (per

curiam) (quoting Harrington v. Richter, 562 U.S. 86, 102-03 (2011)). Accordingly, “[i]n the

habeas setting, a federal court is bound by AEDPA to exercise only limited and deferential

review of underlying state court decisions.” Lomholt v. Iowa, 327 F.3d 748, 751 (8th Cir. 2003)

(citing 28 U.S.C. § 2254). Under AEDPA, a federal court may not grant habeas relief to a state

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

proceedings unless the state court’s adjudication of a claim “(1) resulted in a decision that was

contrary to, or involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States; or (2) resulted in a decision that was

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

State court proceeding.” 28 U.S.C. § 2254(d). A state court decision is “contrary to” clearly

established Supreme Court precedents “if the state court applies a rule that contradicts the

governing law set forth in [the Supreme Court’s] cases” or “if the state court confronts a set of

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

nevertheless arrives at a result different from [the Supreme Court’s] precedent.” Williams v.

Taylor, 529 U.S. 362, 405-06 (2000); see also Brown v. Payton, 544 U.S. 133, 141 (2005). A

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

“correctly identifies the governing legal rule but applies it unreasonably to the facts of a

particular prisoner’s case.” Williams, 529 U.S. at 407-08; see also Bell v. Cone, 535 U.S. 685,

694 (2002). “Finally, a state court decision involves an unreasonable determination of the facts in

light of the evidence presented in the state court proceedings only if it is shown that the state

court’s presumptively correct factual findings do not enjoy support in the record.” Jones v.

Luebbers, 359 F.3d 1005, 1011 (8th Cir. 2004) (citations and internal quotation marks omitted);

see also Rice v. Collins, 546 U.S. 333, 338-39 (2006) (noting that state court factual findings are

presumed correct unless the habeas petitioner rebuts them through clear and convincing

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

B. LEGAL STANDARD FOR PROCEDURALLY DEFAULTED CLAIMS

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

claim to the state court and allow that court an opportunity to address his claim.” Moore-El v.

Luebbers, 446 F.3d 890, 896 (8th Cir. 2006) (citing Coleman v. Thompson, 501 U.S. 722, 731-32

(1991)). “Where a petitioner fails to follow applicable state procedural rules, any claims not

properly raised before the state court are procedurally defaulted.” Id. The federal habeas court

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

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

justice.” Id. (citing Sawyer v. Whitley, 505 U.S. 333, 338-39 (1992)). To demonstrate cause, a

petitioner must show that “some objective factor external to the defense impeded [the

petitioner’s] efforts to comply with the State’s procedural rule.” Murray v. Carrier, 477 U.S.

478, 488 (1986). To establish prejudice, a petitioner must demonstrate that the claimed errors

“worked to his actual and substantial disadvantage, infecting his entire trial with error of

constitutional dimensions.” United States v. Frady, 456 U.S. 152, 170 (1982); accord Ivy v.

Caspari, 173 F.3d 1136, 1141 (8th Cir. 1999). Lastly, in order to assert the fundamental

miscarriage of justice exception, a petitioner must “present new evidence that affirmatively

demonstrates that he is innocent of the crime for which he was convicted.” Murphy v. King, 652

F.3d 845, 850 (8th Cir. 2011) (quoting Abdi v. Hatch, 450 F.3d 334, 338 (8th Cir. 2006)).

III. DISCUSSION

A. SIXTH AMENDMENT RIGHT TO SELF-REPRESENTATION:

Petitioner argues that the trial court denied his Sixth Amendment right to self-

representation. He contends that because the trial court failed to timely consider his motion to

proceed pro se, Petitioner was forced to proceed with counsel and “partly [p]ro-se, denying

Laramore the right call witnesses, be present at all court proceedings, and didn’t request

Laramore sign a written waiver.” (Doc. 1, p.5). Respondent argues that because Petitioner did

not object to standby counsel at trial, he procedurally defaulted this claim (Doc. 8, p.3).

Alternatively, Respondent argues that Petitioner’s claim fails on the merits. Id. The Court agrees

with Respondent.

Petitioner not only failed to object to standby counsel at trial, he advocated for it. Though

Ground I is procedurally defaulted, it also fails on the merits. The Sixth Amendment guarantees

a defendant’s right to have the assistance of counsel for his defense. U.S. Const. Amend. VI. The

Supreme Court has also found the Sixth Amendment implies a right of self-representation.

Faretta v. California, 422 U.S. 806, 821 (1975). In order to conduct his or her own defense, a

defendant must knowingly and willingly forego the benefits of counsel. Id. at 835. “A defendant

who wishes to waive his right to counsel, and thereby to proceed pro se, must do so clearly and

unequivocally.” U.S. v. Webster, 84 F.3d 1056, 1062 (8th Cir. 1996). “While it has been

recognized that the State may appoint standby counsel, such a determination is discretionary and

not a constitutional requirement.” Moore v. Sachse, 421 F.Supp.2d 1209, 1218 (E.D. Mo. 2006)

(citing McKaskle v. Wiggins, 465 U.S. 168, 183 (1984)).

Before trial, Petitioner filed a Motion to Proceed Pro Se (Doc. 8-6 Deft. Exh. E, p.2). The

morning of the trial, the judge asked Petitioner if he still wished to proceed pro se (Doc. 8-1

Deft. Exh. A, p.21). Petitioner responded “Yes, ma’am.” Id. After an extended conversation

about the relevance of a witness proposed by Petitioner, the trial judge stated the following:

“… [n]ow we’re having a trial today. I don’t recommend that you represent yourself. I

mean, I suppose, I mean, that’s your right if you want to. But you – I don’t think that

would be a very good idea. I think that Mr. Rennick is prepared to defend you today.

He’s a lawyer. He knows how to conduct himself in jury trials. He knows how to conduct

jury selection. He knows how to cross-examine witnesses. I don’t want to recommend

that you represent yourself today. But we’re having a trial today. Do you understand all

that?”

Id. at 25-26. Petitioner responded, “[y]es ma’am. Id. at 26. The court continued it’s inquiry:

THE COURT: Okay. Now, do you want to go forward with Mr. Rennick representing

you?

THE DEFENDANT: Well, Your Honor, I would like to cross-examine the witnesses.

And, Mr. Rennick, if you want to appoint him standby counsel, then, because there’s

some very key issues that will exonerate me, and I’m the only one that knows the

questions to ask.

THE COURT: … However, that is your right. I have to let you. That is -- that is your

right. But like I said, I’m not completely sure that I agree with your decision, but I guess

it doesn’t matter if I agree with your decision. That is your right. So, are you requesting

then I allow you to proceed pro se and that I keep Mr. Rennick here as standby counsel to

assist you with matters such as jury selection, opening statements?

THE DEFENDANT: Yes, ma’am.

THE COURT: Does anybody have a problem with that? I think that’s his right.

…

THE COURT: What exactly are you wanting to do as far as conducting your trial?

THE DEFENDANT: Well, Your Honor, all I need to do is cross-examine the witnesses. I

don’t need to do opening statement. I mean, I done jury trials before and Lisa Crane has

done this. I mean . . .

…

THE COURT: Okay. That means Mr. Rennick, as far as I can tell, is going to do

everything else. He’s going to do the voir dire, the opening statement, closing argument.

I’m going to let you do that. But he’s not going to cross-examine witnesses, if what

you’re saying is you want to represent yourself for the purpose of cross-examining. …

Do you understand?

THE DEFENDANT: Yes, ma’am.

THE COURT: Are you sure that’s what you want to do?

THE DEFENDANT: Yes, ma’am. And there’s one other issue –

Id. at 26-29.

The Missouri Court of Appeals found that the trial judge clearly “asked [Petitioner] if he

was aware of what he was requesting, reviewed with him what penalties existed if he was

convicted, and asked [Petitioner] if he knew what rights he was waiving by seeking to proceed

pro se (Doc. 8-6 Deft. Exh. E, p.5). As the transcript showed, Petitioner agreed not to proceed

pro se and facilitated the parameters to proceed with trial counsel on standby. Id.

On appeal, Petitioner argued that because his pro se motion was not reviewed until the

day of trial, he was denied the opportunity and time to determine how to proceed with his case.

The appellate court rejected this argument, stating Petitioner affirmatively agreed to the use of

standby counsel at trial. Id. at 6. Lastly, Petitioner argued that hybrid representation with a public

defender ran afoul of Missouri Code of Regulations, 18 CSR 10-2.010. Id. The appellate court

determined that Petitioner lacked standing to challenge the regulation. Id.

After a review of the record, the Court finds that the appellate court did not err. Though

Petitioner filed a pro se motion and renewed his request to proceed pro se at trial, the record

clearly shows that he rescinded that request when he asked for trial counsel to proceed on

standby. Trial counsel conducted voir dire, the opening statement, and the closing argument.

Petitioner cross-examined witnesses. Petitioner affirmatively agreed to and did not object to this

arrangement. As such, Petitioner’s subsequent conduct demonstrated his desire to abandon his

request to proceed pro se. See Bilauski v. Steele, 754 F.3d 519, 523 (8th Cir. 2014) (citing

Batchelor v. Cain, 682 F.3d 400, 406 (5th Cir.2012) (“Even if defendant requests to represent

himself, ... the right may be waived through defendant's subsequent conduct indicating he is

vacillating on the issue or has abandoned his request altogether.” (omission in original) (quoting

Brown v. Wainwright, 665 F.2d 607, 611 (5th Cir.1982)). The appellate court correctly

determined Petitioner was not denied his Sixth Amendment right to self-representation.

Therefore, Ground I fails.

B. DOUBLE JEOPARDY

Petitioner’s second argument is that his eight-count conviction for possession of a firearm

violated the Double Jeopardy Clause of the Fifth Amendment (Doc. 1, p.6). Respondent argues

that Petitioner defaulted this claim because he did not make this objection before the trial court,

or, in the alterative, the claim is meritless (Doc. 8, p.9). The Court agrees that Petitioner’s double

jeopardy claim was defaulted. By Petitioner’s own admission, trial counsel refused to raise the

double jeopardy objection at trial (Doc. 1, p.6). Although the Missouri Court of Appeals

reviewed Petitioner’s double jeopardy claim for plain error (Doc. 8-6), their review does not

excuse Petitioner’s procedural default. (See Clark v. Bertsch, 780 F.3d 873, 877 (8th Cir. 2015)

(“Because the state court's discretionary plain-error review of Clark's unpreserved claims cannot

excuse his procedural default, we affirm the judgment of the district court.”). The Court can

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

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

justice.” Luebbers, 446 F.3d at 896 (8th Cir. 2006) (citing Sawyer v. Whitley, 505 U.S. 333, 338-

39 (1992)). Petitioner’s assertion that trial counsel refused to raise a double jeopardy objection at

trial also does not excuse the default. “In order for deficient trial work to constitute the kind of

‘cause’ that would excuse a procedural bar ... petitioner [also] must have independently

presented this ineffective assistance claim to the state court for adjudication.” See Clemons v.

Luebbers, 381 F.3d 744, 752 (8th Cir.2004). After a review of the record, the Court was unable

to find any filings where Petitioner alleged that trial counsel was ineffective for failing to make

an objection based on double jeopardy. Petitioner has not offered any other argument for why

there is cause for the default or actual prejudice from the default, nor has Petitioner argued that

the default would result in a fundamental miscarriage of justice.

Even if Petitioner’s argument was not procedurally defaulted, it fails on the merits. The

Fifth Amendment's Double Jeopardy Clause protects a criminal defendant against cumulative

punishment. See Dodge v. Robinson, 625 F.3d 1014, 1017 (8th Cir. 2010). “‘With respect to

cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than

prevent the sentencing court from prescribing greater punishment than the legislature intended.’”

Id. (quoting Missouri v. Hunter, 459 U.S. 359, 366 (1983)). “Where [the legislature] intend[s] ...

to impose multiple punishments, imposition of such sentences does not violate the Constitution.”

Id. (citing Albernaz v. U.S., 450 U.S. 333, 344 (1981). For cumulative punishment involving

state law, whether the legislature authorizes such punishment is a question of state law. Id. “The

Supreme Court repeatedly has held, in the double-jeopardy context, that whether a state

legislature intends cumulative punishment for two offenses is an issue of state law, over which

state courts have final authority.” Id. Thus, this Court is bound by the Missouri court’s

construction of Missouri state statutes.

The Missouri Court of Appeals analyzed Mo. Ann. Stat. § 571.070. and concluded that

the legislature intended for the charge to be for each firearm found on the individual. (Doc. 8-6

Deft. Exh. E, p.11). In reading the statute, the appellate court concluded that there were no

statutory definitions provided in the statute “that indicate[d] whether ‘any firearm’ means a

singular weapon or if several weapons fall into the category of ‘any firearm.’” Id. at 10. After

reviewing state jurisprudence that interpreted the word “any” in other context, the court

reasoned:

The language of the statute also indicates that the legislature intended the charge to be for

each firearm found on the individual. The statute says, “unlawful possession of a

firearm.” Section 571.070 (emphasis added). When interpreting the meaning of a statute,

the court must give meaning to every word or phrase of the statute. State v. Moore, 303

S.W.3d 515, 520 (Mo. banc. 2010). The phrasing of the statute seems to indicate that the

legislature intended to punish for each singular weapon on its own. “A firearm” indicates

singularity in its most simple and plain meaning.

Id. at 11. The appellate court concluded that the state legislature intended to cumulatively punish

a defendant for each firearm possessed. Id. Petitioner argued that the “rule of lenity” applied

because of the ambiguity of the statute. The appellate court rejected this argument, finding the

“rule of lenity” does not apply because of the two-fold intent of the statute: to prevent former

convicted persons from possessing firearms and to protect the public. Id. Based on the record, the

Missouri Court of Appeal’s reasoning was not contrary to, nor an unreasonable application of,

clearly established Federal law. Therefore, Ground II fails.

C. GUILTY VERDICT

Petitioner’s third argument is that the State failed to prove his guilt beyond a reasonable

doubt (Doc. 1, p. 8). In reviewing a challenge to the sufficiency of the evidence, “the relevant

question is 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); accord

Parker v. Matthews, 532 U.S. 37, 43 (2012); Cavazos v. Smith, 565 U.S. 1, 7 (2011). “This

familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts

in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to

ultimate facts.” Jackson, 443 U.S. at 319. State law determines the specific elements of the

crimes. Fenske v. Thalacker, 60 F.3d 478, 480 (8th Cir. 1995). The Courts scope of review is

very limited. The Court “must presume that the trier of fact resolved all conflicting inferences in

the record in favor of the state” and “must defer to that resolution.” Whitehead v. Dormire, 340

F.3d 532, 536 (8th Cir. 2003) (quotation marks omitted). Furthermore, “a state-court decision

rejecting a sufficiency challenge may not be overturned on federal habeas review unless the

decision was objectively unreasonable.” Parker, 532 U.S. at 43 (quotation marks omitted).

Petitioner contends that “the evidence presented at trial did not prove [he] had possession

of the firearms at LaDonna Kay’s1 house on January 7, 2015, [sic] the guns were stored at Kay’s

house [sic] [Petitioner] never went to Kay’s to possess the guns as defense counsel pointed out ‘it

is not illegal to own guns but to possess guns’ [sic] therefore the state failed to prove that

[Petitioner] possessed the guns at Kay’s house on or about the 7th day of January 2017.” [sic]

(Doc. 1, p.8). Respondent states that there is sufficient evidence to sustain the jury’s guilty

verdict (Doc. 8, p.18).

After citing the applicable standard of review and analyzing the definition of

“possession” in RSMo § 556.061(38), the Missouri Court of Appeals found there was sufficient

evidence to support a verdict that Petitioner was in possession of firearms at his sister’s home

(Doc. 8-6 Deft. Exh. E, p.7-9). The Court agrees. Petitioner’s girlfriend testified that he brought

the firearms into her residence in late 2014. Id. at 7. By having possession over the weapons at

the time, even if for a short period, Petitioner actively possessed the firearms. Id. Though

Petitioner removed the weapons to his sister’s residence, he still had constructive possession over

the weapons because 1) Petitioner took the firearms to his sister’s residence; and 2) Petitioner

moved the guns into a closet in a room multiple witnesses testified was Petitioner’s room in the

home. Id. at 8. Petitioner also kept a detailed list of the weapons he stored at his sister’s

residence. Id. Finally, Petitioner testified that he possessed the guns through a police informant

scheme. (Doc. 8-1, Deft. Exh. A, p.199, 212). Based on the record, it was reasonable for the jury

1 LaDonna Kay is Petitioner’s sister.

to find that Petitioner was in possession of the firearms at his sister’s house. Therefore, Ground

III fails.

D. INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL

Petitioner’s fourth argument is that he received ineffective assistance of counsel because

appellate counsel did not object to the trial court’s finding that he was a persistent offender.

(Doc. 8-10 Deft. Exh. I, p.8). To succeed on a claim of ineffective assistance of counsel,

Petitioner must show that 1) counsel failed to exercise the level of skill and diligence that a

reasonably competent attorney would exercise in a similar situation; and 2) Petitioner was

prejudiced by counsel’s failure. Strickland v. Washington, 466 U.S. 668, 687 (1984). “Counsel is

strongly presumed to have rendered adequate assistance and made all significant decisions in the

exercise of reasonable professional judgment.” Id. at 690. Appellate counsel is expected to

address the issues on appeal that highlight the most meritorious claims and eliminate the sure

losers. See Jones v. Barnes, 463 U.S. 745, 751–52 (1983); Gee v. Groose, 110 F.3d 1346, 1352

(8th Cir. 1997); Pollard v. Delo, 28 F.3d 887, 889 (8th Cir.1994); see also Parker v. Bowersox,

94 F.3d 458, 462 (8th Cir.1996) (“To perform competently under the Sixth Amendment, counsel

is neither required nor even advised to raise every conceivable issue on appeal.”).

Petitioner argued that an unsigned judgment could not support the trial court’s finding that he

was a prior and persistent felony offender. (Doc. 8-10 Deft. Exh. I, p.9). He stated that an

unsigned judgment of conviction is insufficient proof of conviction absent a judge’s signature,

and cited Fed. R. Civ. P. 74.01(a) which states, “[a] judgment is entered when a writing signed

by the judge and denominated ‘judgment’ or ‘decree’ is filed.” (Doc. 8-10 Deft. Exh. I, p.9).

Petitioner acknowledged that Rule 74.01(a) is a rule of civil procedure but contends that since

criminal liability generally requires a higher burden of proof, it is axiomatic that a judge’s

signature is required on a judgment of conviction. The Missouri Court of Appeals found that

Petitioner never asserted that his prior conviction was improperly authenticated nor did Petitioner

cite any case supporting his proposition on unsigned criminal judgments. In fact, the appellate

court cited state jurisprudence holding the opposite. Id.

Considering appellate counsel’s perspective at the time, the Missouri Court of Appeals found

that “[a]t the time of [Petitioner’s] direct appeal, there was no caselaw clearly holding a

judgment imposing criminal liability is invalid unless signed by a judge.” Id. at 10. Applying the

Strickland test, the court held that “[a]ppellate [c]ounsel’s performance cannot be deficient in

failing to make [P]etitioner’s proffered argument because counsel ha[d] no duty to raise a novel

argument, even if [t]rial [c]ounsel preserved the error.” Id. Based on the record before the Court,

Petitioner has failed to demonstrate that he received ineffective assistance of appellate counsel.

Thus, Ground IV fails.

E. PROCEDURALLY DEFAULTED CLAIM: FAIR AND IMPARTIAL JURY

Petitioner’s final argument is that he was denied a fair and impartial jury because

venirepersons Harris, Charboneau, and Franklin showed prejudice towards him (Doc. 1, p.10). In

his post-conviction appeal, Petitioner argued that he received ineffective assistance of counsel

because trial counsel failed to seek a mistrial after venireperson Harris said he know Petitioner

from a wanted poster he saw at work years prior. Respondent contends that Petitioner’s claim is

procedurally defaulted because Petitioner did not include these claims in a motion for a new trial

or on direct appeal (Doc. 8, p.20). The Court agrees that Petitioner failed to preserve Ground V.

In his post-conviction appeal, Petitioner argued that he received ineffective assistance of counsel

because trial counsel failed to seek a mistrial. (Doc. 1-1, p.85-88). However, for the first time on

federal habeas review, Petitioner asserts that he was denied a fair and impartial jury, a claim he

did not properly preserve for review at the state level. Petitioner presents no argument to excuse

the default, and the record contains no indication that he can show the requisite prejudice to

overcome a procedural bar, or that he is actually innocent. See Cagle v. Norris, 474 F.3d 1090,

1099 (8th Cir. 2007) (because Petitioner failed to establish cause to excuse his procedural

default, the district court need not consider whether prejudice had been shown); see also Abdi v.

Hatch, 450 F.3d 334, 338 (8th Cir. 2006) (where Petitioner failed to present new evidence of

actual innocence, the refusal to entertain his procedurally defaulted claims will not result in a

fundamental miscarriage of justice). Accordingly, Ground V is procedurally barred from federal

habeas review, and will be denied.

IV. MOTION FOR AN EVIDENTIARY HEARING & APPOINTMENT OF COUNSEL

Also before the Court is Petitioner’s Motion for an Evidentiary Hearing and Appointment

of Counsel (Doc. 19). Petitioner states that he “is suffering from long COVID … and has a hard

time carrying on a conversation, much less arguing petitioner’s case in a court of law.” Id.

Generally, the decision about whether to conduct an evidentiary hearing is within a habeas

court's discretion, as limited by statutory restrictions set forth in AEDPA. See Schriro v.

Landrigan, 550 U.S. 465, 473-75 (2007). It is well established that “if the record refutes the

applicant's factual allegations or otherwise precludes habeas relief, a district court is not required

to hold an evidentiary hearing.” Id. at 474. Petitioner has not articulated a basis for requesting a

hearing and the Court has found Petitioner is not entitled to habeas relief for the above-stated

reasons. As such, Petitioner’s request for an evidentiary hearing is denied.

Petitioner also requests an appointment of counsel. It is well-settled that there is no

recognized constitutional right to appointed counsel in a habeas corpus proceeding. Hoggard v.

Purkett, 29 F.3d 469, 471 (8th Cir. 1994). However, “[a] district court may appoint counsel for a

habeas petitioner when ‘the interests of justice so require.’” Id. (quoting Abdullah v. Norris, 18

F.3d 571, 573 (8th Cir. 1994). See also 18 U.S.C. § 3006A(a)(2) (“Whenever the United States

magistrate judge or the court determines that the interests of justice so require, representation

may be provided for any financially eligible person who . . (B) is seeking relief under section

2241, 2254, or 2255 of title 28.”). If the court decides to hold an evidentiary hearing on the

petition, the interests of justice require that counsel be appointed. Hoggard, 29 F.3d at 471. See

also Rule 8(c) of the Rules Governing § 2254 Cases (“If an evidentiary hearing is warranted, the

judge must appoint an attorney to represent a petitioner who qualifies to have counsel appointed

under 18 U.S.C. §3006A.”). Where no evidentiary hearing is warranted, the appointment of

counsel is discretionary. Hoggard, 29 F.3d at 469. “In exercising its discretion, the district court

should consider the legal complexity of the case, the factual complexity of the case, and the

petitioner’s ability to investigate and present his claims, along with any other relevant factors.”

Hoggard, 29 F.3d at 469.

After considering the above standards in conjunction with the claims raised in the

petition and the arguments raised in the response, the Court finds that the interests of justice do

not require the appointment of counsel at this time. Petitioner has been able to articulate all of his

legal arguments. The Court acknowledges Petitioner’s argument that he has long COVID and

would benefit from an attorney, but considering the record, the Court’s review of the filings in

this case, and the Court’s determination on the petition, appointment of counsel is unnecessary in

this matter. As such, Petitioner’s request for counsel is denied.

V. MEMO IN RE: COURT’S MISTAKE

On February 26, 2024, Petitioner filed a Memorandum to Clerk of the United States

District Court Eastern District Re: Court’s Mistake (Doc. 22). In this Memorandum, Petitioner

states, “After reading the court’s decision dated Sept. 18, 23, the court stated that ‘Docket sheets

from a civil case stating that Laramore’s attorney stated that IT WAS NOT AGAINST THE

LAW TO OWN FIREARMS BUT TO POSSESS THEM’ . . . .” Petitioner appears to be

arguing that this was an erroneous statement by the Court because the statement from

Laramore’s attorney was actually made in pre-trial proceedings from his trial (not in a civil case),

on the morning of his trial, and was the reason Petitioner exercised his right to trial.

The Court has reviewed its Memorandum and Order dated September 18, 2023 (Doc. 21),

which addressed a request by Petitioner to file supplemental exhibits out of time. The language

quoted by Petitioner does not appear in that Memorandum and Order. However, the Court did

discuss a civil case mentioned in Petitioner’s exhibits (No. 19WA-CC00331-01) and noted that

one of the exhibits submitted by Petitioner was “pages 59 and 60 of what appears to be the trial

transcript in that civil case.” (Doc. 21, p.2). Those transcript pages include a statement from

Petitioner’s attorney that “it’s not illegal to own guns. It’s illegal to possess them.” (Doc. 16-1,

p.59). Because these transcript pages contained a header with the case number 19WA-CC00331-

01, the Court presumed that these transcript pages were from that civil case. However, upon

review of Petitioner’s Memorandum and the trial transcript that was previously filed by

Respondent in the instant case, it is apparent that these transcript pages (with different

numbering) are from the pretrial proceedings in Petitioner’s criminal case (See Doc. 8-1 Resp’t

Ex. A, p. 9-11).

This error does not affect the Court’s September 18, 2023, ruling denying Petitioner’s

Request to File Supplemental Exhibits Out of Time. Because these transcript pages are already

part of the record, there was (and is) no reason to add them through a supplemental exhibit.

VI. CONCLUSION

For all of the above reasons, Petitioner is not entitled to federal habeas relief. Under 28

U.S.C. § 2253, an appeal may not be taken to the Court of Appeals from the final order in a 28

U.S.C. § 2254 proceeding unless a circuit judge or district judge issues a certificate of

appealability. 28 U.S.C. § 2253(c)(1)(A). To grant such a certificate, the judge must find that the

Petitioner “has made a substantial showing of the denial of a constitutional right.” § 2253(c)(2);

Tiedman y. Benson, 122 F.3d 518, 522 (8th Cir. 1997). “A substantial showing is a showing that

issues 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) (citation

omitted). The Court finds that Petitioner has not made a substantial showing of the denial of a

constitutional right, so the Court will not issue a certificate of appealability. Accordingly,

IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that Dennis Lynn

Laramore’s petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) is

DENIED.

IT IS FURTHER ORDERED that this case is DISMISSED, with prejudice.

IT IS FURTHER ORDERED that no certificate of appealability shall issue because

Petitioner has failed to make a substantial showing that he has been denied a constitutional right.

28 U.S.C. § 2253.

IT IS FINALLY ORDERED that Petitioner’s Motion for Evidentiary Hearing and

Appointment of Counsel (Doc. 19) is DENIED.

V4, O00

SHIRLEY PADMORE MENSAH

UNITED STATES MAGISTRATE JUDGE

Dated this 31th day of March, 2024.

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