The opinion
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION
DESHAWN SMITH, )
)
Petitioner, )
)
v. ) Case No.2: 22-cv-04002-SRB
)
DORIS FALKENRATH, )
)
Respondent. )
ORDER
Before the Court is Petitioner’s First Amended Petition for a Writ of Habeas Corpus.
(Doc. #10.) Upon review, the petition is DENIED, a certificate of appealability is DENIED, and
these claims are DISMISSED.1
I. BACKGROUND
Petitioner challenges his 2016 conviction and sentence for one count of robbery in the
first degree, one count of attempted robbery in the first degree, and one count of armed criminal
action. Following a jury trial, Petitioner was found guilty and sentenced to twenty years
imprisonment. The Missouri Court of Appeals, Western District, (“court of appeals”) affirmed
Petitioner’s conviction and sentence on direct appeal. Petitioner’s motion for post-conviction
relief was denied following an evidentiary hearing, and that denial was affirmed on appeal.
The Court defers to and adopts the following facts set forth by the court of appeals:2
1 This Court finds the Petition was filed in a timely manner.
2 Before the state court findings may be set aside, a federal court must conclude that the state court’s findings of fact
lack even fair support in the record. Marshall v. Lonberger, 459 U.S. 422, 432 (1983). Credibility determinations are
left for the state court to decide. Graham v. Solem, 728 F.2d 1533, 1540 (8th Cir. en banc), cert. denied, 469 U.S. 842
(1984). It is Petitioner’s burden to establish by clear and convincing evidence that the state court findings are
erroneous. 28 U.S.C. § 2254(e)(1). The state court’s findings of fact have fair support in the record and Petitioner
has failed to establish by clear and convincing evidence that the state court findings are erroneous.
In the early morning hours of July 21, 2014, Smith attempted to rob
a Motel 6 in Columbia at gunpoint, but the employees told him they
had no cash on hand. Smith left, and the employees called the
police. The attempted robbery was captured on surveillance video.
While the police were interviewing the Motel 6 employees, Smith
robbed a Phillips 66 FastLane in Columbia at gunpoint. The
FastLane clerk gave Smith approximately $97, including 20 one-
dollar bills that were paper-clipped together. The robbery was
recorded on surveillance video. After Smith left the building, the
clerk saw the direction that Smith was headed and called the police.
Shortly thereafter, officers located Smith’s car and activated their
emergency lights to initiate a traffic stop. Smith did not stop,
however, and a chase ensued, during which Smith threw lottery
tickets out of his car. Eventually, Smith drove his car out of a
parking lot and down a hill into a fence in the backyard of a house.
He then got out of his car, jumped over the fence, and fled on foot
to the front of the house. As Smith ran, he removed the hooded
sweatshirt he was wearing and threw it in the yard. The police
apprehended Smith. During a search incident to Smith’s arrest,
officers found $97 in cash in his pockets, including 20 one-dollar
bills that were paper-clipped together. Officers found Smith’s gun,
a .22 semi-automatic pistol, in the bushes of the home where Smith
stopped his car. Just outside of Smith’s car, officers found a pink
paisley-print bandanna, a ball cap, and sunglasses, all of which were
items, along with the hooded sweatshirt, that the victims reported
the perpetrator was wearing at the time of the crimes. When officers
later searched Smith’s pants, a .22 caliber round fell out of his pants
pocket.
The State charged Smith, as a persistent felony offender, with
attempted robbery, first-degree robbery, and armed criminal action.
A jury trial was held. The jury found him guilty, and the court
ordered him to serve concurrent sentences of 10 years in prison for
attempted robbery, 20 years in prison for first degree robbery, and
10 years in prison for armed criminal action. We affirmed his
convictions and sentences on direct appeal in a per curiam order.
State v. Smith, 543 S.W.3d 673 (Mo. App. 2018).
Smith filed a pro se Rule 29.15 motion, which was later amended
by appointed counsel. One of the claims in his amended motion was
that his trial counsel was ineffective for failing to object to the dash-
cam video of the car chase on the basis that it was prejudicial
evidence of uncharged misconduct, namely, resisting arrest by
flight. He asserted that, if his trial counsel had objected on this basis,
the video would have been excluded, and there is a reasonable
probability that the outcome of his trial would have been different.
An evidentiary hearing was held. With regard to this claim, Smith’s
trial counsel testified during the hearing that it “did not occur” to
him to object on the basis that the video was evidence of uncharged
misconduct. The motion court denied Smith’s Rule 29.15 motion.
(Doc. #14 -20, p. 3-5.)
II. LEGAL STANDARD
Under 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty
Act (AEDPA), a decision by a state court “with respect to any claim that was adjudicated on the
merits in State court proceedings” is entitled to deference by the federal courts. Brown v.
Luebbers, 371 F.3d 458, 460 (8th Cir. 2004). Courts look to see if those state court proceedings:
‘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 ‘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.
Id.
“A habeas petitioner is required to pursue all available avenues of relief in the state courts
before the federal courts will consider a claim.” Sloan v. Delo, 54 F.3d 1371, 1381 (8th Cir.
1995). “State prisoners must give the state courts one full opportunity to resolve any
constitutional issues by invoking one complete round of the State’s established appellate review
process” before presenting those issues in an application for habeas relief in federal court.
O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). “If a petitioner fails to exhaust state remedies
and the court to which he should have presented his claim would now find it procedurally barred,
there is a procedural default.” Sloan, 54 F.3d at 1381.
III. DISCUSSION
Petitioner raises the following four grounds for relief: (1) ineffective assistance of
counsel based on trial counsel’s conduct during voir dire; (2) ineffective assistance of counsel
based on trial counsel’s failure to review the entirety of the discovery; (3) ineffective assistance
of counsel based on trial counsel’s failure to object to the State’s admission of the dash cam
video of the car chase; and (4) ineffective assistance of counsel based on trial counsel’s failure to
request a mistrial. The parties’ arguments regarding each ground are addressed separately
below.
A. Grounds One, Two, and Four
As a threshold matter, the Court finds that Counts One, Two, and Four are procedurally
defaulted.
“If a petitioner fails to exhaust state remedies and the court to which he should have
presented his claim would now find it procedurally barred, there is a procedural default.” Sloan,
54 F.3d at 1381. “Where a claim is defaulted, a federal habeas court will consider it only if the
petitioner can establish either cause for the default and actual prejudice, or that failure to
consider the claim will result in a fundamental miscarriage of justice.” Abdi v. Hatch, 450 F.3d
334, 338 (8th Cir. 2006). “This exception requires a habeas petitioner to present new evidence
that affirmatively demonstrates that he is innocent of the crime for which he was convicted.” Id.
Petitioner failed to assert Grounds One, Two, and Four in his post-conviction
proceedings. To obtain habeas relief, in addition to succeeding on their merits, Petitioner must
also show cause for the default and actual prejudice, or that a failure to consider each ground will
result in a fundamental miscarriage of justice.
1. Ground One
In Ground One, Petitioner argues that trial counsel was ineffective in failing to move to
strike for cause Jurors 2 and 21, and, if unsuccessful, using a peremptory strike to remove these
venirepersons from the jury panel. Respondent asserts Petitioner failed to assert this claim in his
post-conviction proceedings and the claim is procedurally barred in addition to being without
merit.
Petitioner has failed to overcome the procedural bar because he has not demonstrated
there was cause, prejudice, or that the comments made by the jurors would result in a
fundamental miscarriage of justice. During voir dire, Petitioner’s counsel asked potential jurors
if they would have issues obeying an instruction to hold no negative inferences against the
Petitioner for utilizing his right to remain silent during trial. When asked, Juror 21 responded
with “No, I’d probably weigh it.” (Doc. #14-12, p. 76.) When asked the same question, Juror 2
mentioned he “definitely would have an opinion.” (Doc. #14-12, p. 75.) Petitioner claims these
comments were so detrimental as to cause a structural error that would result in fundamental
unfairness. However, Juror 2 went on to state three times that he could follow an instruction not
to draw a negative inference from the defendant not testifying, the last time saying “absolutely.”
(Doc. #14-12, p. 75.) Juror 21 answered in the negative when asked if she would be prevented
from following the jury instruction. Neither the comments by Juror 2 nor Juror 21 demonstrate
affirmatively demonstrates that Petitioner is innocent. As a result, Ground One is procedurally
defaulted and is denied.
2. Ground Two
In Ground Two, Petitioner argues that trial counsel was ineffective in failing to review
the entirety of the discovery with petitioner in order to allow petitioner to fully consider the
state’s plea offer. Respondent asserts the rejection of this claim by the state post-conviction
motion court after an evidentiary hearing is entitled to deference under AEDPA and that the
Petitioner defaulted the claim in the appeal of denial of the post-conviction relief motion.
“The Due Process Clause does not permit the federal courts to engage in finely tuned
review of state evidentiary rules.” Estelle v. McGuire, 502 U.S. 62, 72 (1991) (quoting Marshall
v. Lonberger, 459 U.S. 422, 438 (1983)). Here, the post-conviction court found trial counsel’s
testimony that he provided the discovery and reviewed the discovery extensively with the
Petitioner to be credible and found the Petitioner’s claim to the contrary to be unpersuasive. The
court of appeals said that Petitioner’s “testimony that he ‘probably’ would have pled guilty had
counsel acted differently demonstrates [Petitioner’s] failure to meet his burden to prove he was
prejudiced by counsel’s alleged deficient performance . . . [Petitioner] failed to prove that there is
a reasonable probability that the outcome . . . would have been different.” (Doc. #14-18, p. 17.)
This Court agrees and will not engage in a finely tuned review of the state court’s adjudication of
Missouri’s evidentiary rules. Further, Petitioner has not presented any evidence that failure to
consider this claim will result in a fundamental miscarriage of justice. Ground Two is denied.
3. Ground Four
In Ground Four, Petitioner argues that trial counsel was ineffective in failing to request a
mistrial after the State played a 911 call from Kashis Kahn, who did not testify at trial. Petitioner
claims that, but for trial counsel’s deficient performance, there is a reasonable probability that the
petitioner would not have been convicted. Respondent asserts that claim is barred and without
legal merit.
Here, Petitioner makes no argument or excuse as to why appellate counsel failed to assert
this claim during the post-conviction proceedings nor the post-conviction appeal. Further, the
record shows that counsel for the Petitioner considered asking for a mistrial, but decided not to
do so. Counsel directed the jury to be instructed not to consider the statements of the non-
testifying clerk. Counsel’s strategic decision to not call for a mistrial did not create a situation in
which a fundamental miscarriage of justice occurred. Even though Kashis Kahn did not testify,
the State introduced other evidence connecting the 911 call to Petitioner. For example, the 911
call referenced a pink bandana. The State called an officer who claimed to have found the pink
bandana outside of Petitioner’s case. Because Petitioner has not shown that counsel’s failure to
seek a mistrial was a fundamental miscarriage of justice, Ground Four is denied.
B. Ground Three
In Ground Three, Petitioner argues that trial counsel was ineffective in failing to object to
the admission of the car chase video of Petitioner fleeing from police on the basis that the video
showed “irrelevant, prejudicial evidence of uncharged acts.” (Doc. #10, p. 24.) Respondent
asserts that the court of appeals rejected this claim and its decision to do so is entitled to
deference.
“A federal court may not re-examine a state court’s interpretation and application of state
law.” Skillicorn v. Luebbers, 475 F.3d 965, 974 (8th Cir. 2007) (citing Schleeper v. Groose, 36
F.3d 735, 737 (8th Cir.1994)). “A court considering a claim of ineffective assistance of counsel
must apply a ‘strong presumption’ that counsel’s representation was within the ‘wide range’ of
reasonable professional assistance.” Harrington v. Richter, 562 U.S. 86, 104 (2011) (citing
Strickland v. Washington, 466 U.S. 668, 669 (1984)). “Failure to raise a meritless objection
cannot support a claim of ineffective assistance.” Sittner v. Bowersox, 969 F.3d 846, 853 (8th
Cir. 2020).
Here, Petitioner fails to overcome the presumption that counsel’s representation was not
within the ‘wide range’ of reasonable professional assistance. In relying on Missouri law, the
court of appeals found that any “objection to the dash-cam video of the car chase on the basis
that it was improper evidence of uncharged misconduct would not have been meritorious.”
(Doc. #14-20, p. 7.) The dash cam video in which Petitioner was attempting to avoid arrest
demonstrated his consciousness of guilt. Also, this evidence was admissible because it helped
present a complete picture of the events that transpired around the crime. This Court may not
grant a writ of habeas corpus with respect to any issue decided by the Missouri state courts
unless the decision “was contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court” or “was based on an unreasonable
determination of the facts in light of the evidence presented in the State court.” 28 U.S.C. §
2254(d). Neither of these necessary conditions were met here. Ground Three is denied.
IV. Conclusion
For the foregoing reasons, it is ORDERED that Grounds One through Four of
Petitioner’s petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 are DENIED, a
certificate of appealability is DENIED as to Grounds One through Four, and these claims are
DISMISSED.
IT IS SO ORDERED.
/s/ Stephen R. Bough
STEPHEN R. BOUGH
UNITED STATES DISTRICT JUDGE
Dated: September 26, 2022