# Buford v. Cassady

> District Court, E.D. Missouri · October 15, 2021

URL: https://www.frixlaw.com/law-library/cases/10651871

## Case

- **Court:** District Court, E.D. Missouri
- **Decided:** October 15, 2021
- **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/10651871

## How later opinions describe it (automated extraction)

- holding a federal court has the discretion to consider an issue of procedural default sua sponte
- holding state court’s plain-error review does not excuse procedural default

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

SEAN K. BUFORD, )
)
Petitioner, )
)
vs. ) Case No. 4:17-CV-2506 PLC
)
DORIS FALKENRATH,1 )
)
Respondent. )

MEMORANDUM AND ORDER

Petitioner Sean K. Buford seeks federal habeas corpus relief from a Missouri state court
judgment entered after a jury trial. 28 U.S.C. § 2254. [ECF No. 1] Respondent Doris Kalkenrath
filed a response to the petition, along with exhibits consisting of copies of the materials from the
underlying state court proceedings, and Petitioner filed a reply. [ECF Nos. 15, 26] For the reasons
set forth below, the Court denies the petition, as well as Petitioner’s request for an evidentiary
hearing.2
I. Background
A. Petitioner’s first trial
In 2007, in Cause No. 0722-CR09916, the State charged Petitioner with 16 counts for
crimes against four victims, S.S., M.W., H.S., and J.T. [ECF No. 27-1] The charges included
counts of (1) kidnapping, forcible rape, and forcible sodomy of S.S.; (2) forcible rape and forcible

1 The Court substitutes as the Respondent Doris Falkenrath, the Warden of the Jefferson City Correctional Center
where Petitioner is presently incarcerated, in lieu of the former warden of the Missouri correctional institution
having custody of Petitioner when he filed this habeas proceeding. See Federal Rule of Civil Procedure 25(d); Rule
2(a) of the Rules Governing Section 2254 cases in the United States District Court.
2 The parties consented to the jurisdiction of the undersigned United States Magistrate Judge pursuant to 28 U.S.C.
§636(c). [ECF No. 6]
sodomy of M.W.; (3) forceable rape, forceable sodomy, robbery, and kidnapping of H.S., as well
as four counts of armed criminal action associated with the offenses against H.S.; and (4) one count
of forcible rape and two counts of forcible sodomy of J.T. [Id.]
On October 26, 2009, the first day of trial, the State entered a memorandum of nolle
prosequi on the three counts related to J.T. because the State was unable to secure the appearance

of an essential witness. [Id.] The cause proceeded on the remaining 13 counts. At the conclusion
of the trial, the jury returned not guilty verdicts on six counts, including kidnapping of S.S., and
the single count of robbery and the four counts of armed criminal action related to the alleged
offenses against H.S. [Id.] The jury was unable to return verdicts on seven counts, including
forcible rape and forcible sodomy of S.S., forcible rape and forcible sodomy of M.W., and forcible
rape, forcible sodomy, and kidnapping of H.S. [Id.]
B. Pretrial motions in Petitioner’s second trial
The trial court declared a mistrial on the “hung” counts and the case was placed on the
January 4, 2010 trial docket. [Id.] The court subsequently continued the trial at the State’s request

because the prosecutor assigned to the case was handling another trial. [Id.] On January 8, 2010,
Petitioner filed a request for speedy “retrial” on the “hung” counts. [Id.] In February 2010, the
court continued the trial until April 5, 2010, due to the unavailability of a State witness and
Petitioner’s refusal to stipulate to the witness’s testimony. [ECF Nos. 15-1, 27-1].
On March 23, 2010, the State filed a new indictment, Cause No. 1022-CR01505, charging
Petitioner with ten counts: the remaining seven counts from Cause No. 0722-CR09916, as well as
three counts related to J.T. which the State entered a nolle prosequi prior to the October 26, 2009
trial. [ECF No. 15-5]. The new indictment charged Petitioner with (1) forcible rape and forcible
sodomy of S.S. (Counts I and II); (2) forcible rape and two counts of forcible sodomy of J.T.
(Counts III-V); (3) forcible rape and forcible sodomy of M.W. (Counts VI and VII); and (4)
forcible rape, forcible sodomy, and kidnapping of H.S. (Counts VIII-X). [Id.]
On April 5, 2010, the court cancelled the trial and set a motion hearing to consider dismissal
of the indictments. [ECF Nos. 15-5, 27-1] The court reset the hearing several times. [Id.]
On April 19, 2010, Petitioner filed a motion to dismiss the indictments in both cases, Cause

Nos. 0722-CR09916 and 1022-CR01505, for failure to timely retry the case after a hung jury. [Id.]
On April 22, 2010, the trial court conducted a hearing on Petitioner’s motion to dismiss. [ECF
Nos. 15-5] At that time, the State entered a memorandum of nolle prosequi in Cause No. 0722-
CR09916, and the court arraigned Petitioner on the new indictment, Cause No. 1022-CR01505.
[ECF Nos. 15-5, 27-1] The court also denied Petitioner’s April 19, 2010 motion to dismiss and set
the case for trial on July 19, 2010. [ECF Nos. 15-5]
On July 13, 2010, Petitioner filed several pretrial motions, including: (1) a motion to
dismiss the five charges related to S.S. and H.S. claiming a violation of his right to be free from
double jeopardy after his acquittal on related charges in his first trial; (2) a motion to sever asserting

joinder of the offenses in a single trial was improper and, even if joinder was proper, severance
was warranted because joinder would result in substantial prejudice to Petitioner; and (3) a motion
to dismiss for failure to timely retry the case after the hung jury, asserting a violation of his
Missouri constitutional and statutory speedy trial rights, as well as his United States constitutional
due process and speedy trial rights. [Id.] On July 19, 2010, the case proceeded to trial. Prior to the
admission of evidence, the court conducted a hearing on Petitioner’s outstanding motions and
denied the motions.3 [ECF No. 15-1]

3 Petitioner also filed a handwritten motion to dismiss for a violation of his speedy trial rights on the first day of trial.
This motion was substantially similar to his pending motion and was also denied by the court that day. [ECF No. 15-
1]
C. Petitioner’s second trial
At trial, M.W. testified that on the morning of February 20, 2007, it was cold outside and
she was walking to a friend’s house. [Id.] Near the intersection of Page and Goodfellow, she asked
a man in a gold Saturn, later identified as Petitioner, if she could pay him to give her a ride. [Id.]
Petitioner agreed and M.W. got into the car. [Id.] Instead of taking M.W. to her friend’s house,

Petitioner drove to an alley and parked. [Id.] Petitioner called M.W. “the B word” and demanded
she perform oral sex on him. M.W. testified Petitioner grabbed her by the back of the head, pushed
her head toward his genital area, and forced his penis into her mouth. [Id.] Then, Petitioner reclined
M.W.’s seatback and laid her on her stomach so that she was facing the car’s back windshield.
[Id.] Petitioner pulled her pants down and had sexual intercourse with her. [Id.] Afterward, while
Petitioner was rummaging through M.W.’s purse, M.W. ran from the vehicle and called the police
from a pay phone. [Id.]
In the early morning hours of March 14, 2007, H.S. was walking down the street on her
way to a client’s home. [ECF No. 15-2]. H.S. testified she used heroin and cocaine, and she worked

as a prostitute with a certain group of clients with whom she felt comfortable. [Id.] As she was
walking down Hamilton, near Minerva, Petitioner pulled over in a gold Saturn and asked if she
was looking for a date. [Id.] H.S. told him no, and Petitioner drove away. [Id.] H.S. testified
Petitioner returned shortly thereafter and forced her into the car. [Id.] Petitioner drove to a nearby
lot and parked. [Id.] Petitioner called H.S. a bitch and ordered her to perform oral sex on him. [Id.]
Petitioner then grabbed H.S.’s head and pushed it down. [Id.] H.S. testified she was afraid so she
performed oral sex on him. [Id.] Petitioner then reclined H.S.’s seatback, climbed on top of her,
and had sexual intercourse with her. [Id.] At some point, Petitioner directed H.S. to turn over so
that she was on her stomach, facing the back window. [Id.] Petitioner pushed H.S.’s head into the
backseat, put his penis into her vagina, and stuck his fingers into her anus. [Id.] When he was
finished, Petitioner told H.S. to get out of the car, and H.S. ran to a nearby house and called the
police. [Id.]
J.T. testified that in June 2007 she was a drug addict who worked as a prostitute. [Id.] In
the early morning hours on June 8, 2007, J.T. stopped at a store for some food while on her way

to a nearby motel where she planned to relax and get high. [Id.] Outside the store, near the
intersection of Hodiamont and Ridge, J.T. was stopped by Petitioner who was driving a gold, four-
door car. [Id.] J.T. had seen Petitioner driving around the neighborhood on several other occasions
but he had never propositioned her before. [Id.] J.T. got into the car, and they came to an agreement
about J.T. performing oral sex. [Id.] J.T. testified she had a “comfort zone” and preferred to work
within the few-block radius of where she picked up her customers. [Id.] As Petitioner was driving,
she directed him to make a turn and told him that she did not want to cross Page Avenue. [Id.]
After Petitioner ignored her directives and continued to drive, J.T. decided she was not going to
go through with the date. [Id.] After Petitioner parked at the end of a dead-end street, J.T. reached

for the door handle to exit the vehicle and she realized the handle was missing. [Id.] Petitioner
grabbed J.T.’s wrist and ordered her to perform oral sex on him. [Id.] As she complied, Petitioner
held her head down. [Id.] Petitioner then reclined J.T.’s seatback, climbed over the console, and
had vaginal intercourse with her. [Id.] Petitioner then turned J.T. over onto her stomach, positioned
her waist between the front seats and her upper body in the backseat, and put his penis into her
anus. [Id.] Petitioner then forced J.T. to perform oral sex on him before again forcing her to submit
to anal sex. [Id.] During the assault, J.T. and Petitioner were startled when someone, later identified
as Charles Burton, approached the vehicle and knocked on the driver’s-side window. [Id.] J.T. then
elbowed Petitioner, pushed him off her, and rushed out of the driver’s-side door screaming, “He’s
raping me, he’s raping me.” [Id.] J.T. testified she had blood and feces in her mouth and all over
her body. [Id.]
Charles Burton testified he saw a gold car parked approximately 100 yards away from his
home and decided to check it out because the area was known for drug dealing and prostitution.
[Id.] Burton stated J.T. was hysterical upon exiting the vehicle and was anxious for him to call the

police. [Id.] J.T. was crying, shaking, and saying that Petitioner raped her. [Id.] Burton noticed
there was blood and feces on J.T. and on the interior of the vehicle. [Id.] J.T. was naked from the
waist down so Burton gave J.T. a blanket to cover up with while waiting for the police. [Id.]
Officer Andre Jackson was dispatched to the scene. [Id.] Officer Jackson described J.T. as
distraught, indicating she was crying and rocking back-and-forth while in the fetal position. [Id.]
While speaking with her, the officer noticed a strong odor of feces emitting from her mouth. Burton
provided Officer Jackson with a description of the vehicle and its license plate number. [Id.]
Kathryn Howard, a registered nurse at St. Mary’s Health Center, testified she completed
the sexual assault kit for J.T. [Id.] Howard stated J.T. had stool all over her face and in her mouth

when she arrived at the hospital. [Id.] J.T. was also suffering from large internal hemorrhoids
which had come out of J.T.’s rectum, and which were bleeding and causing her a significant
amount of pain. [Id.] After the sexual assault examination was complete, a doctor performed a
procedure to place J.T.’s hemorrhoids back inside of her rectum. [Id.]
On July 1, 2007, S.S. and her boyfriend were walking to a family member’s house when
they noticed a gold vehicle drive by several times. [Id.] S.S.’s boyfriend went into a nearby
convenience store, while S.S. continued walking by herself. [Id.] Near the corner of Hodiamont
and Martin Luther King Boulevard, S.S. saw Petitioner exit the gold vehicle. [Id.] Petitioner called
out to S.S. using the wrong name, and S.S. told Petitioner that he had the wrong person. S.S.
testified that she “ended up in the car” with Petitioner.4 [Id.] Petitioner drove S.S. to an alley near
Minerva and parked behind a house. [Id.] Petitioner reclined S.S.’s seatback and locked the
passenger-side door. [Id.] Petitioner told S.S. that he wanted her to act out a “script” where she
was to pretend that she was his younger sister and he was going to creep into her room to have sex
with her. [Id.] Petitioner then grabbed the back of S.S.’s head and forced her to perform oral sex

on him. [Id.] S.S. testified that Petitioner was unable to maintain an erection, which Petitioner
blamed on S.S. not being able to remember the script. [Id.] Petitioner then moved S.S. onto her
stomach, climbed on top of her, and began rubbing his penis on her lower back. [Id.] Petitioner put
his penis into her vagina but again was unable to maintain an erection. [Id.] S.S. then saw someone
exit the house nearby so she began yelling. [Id.] Petitioner drove a short distance away and ordered
S.S. to get out of the car. [Id.] As he pulled away, S.S. memorized his license plate number5 and
then ran for help. [Id.]
In July 2007, police followed up on the license plate number provided by S.S. and learned
that the vehicle was linked to the assault on J.T. [Id.] When police responded to the registration

address, Petitioner was present at the home. [Id.] Each of the victims identified Petitioner as their
assailant and Burton identified Petitioner as the driver of the gold vehicle. [Id.] After the incidents,
each of the women underwent a sexual assault examination at the hospital and a sexual assault
evidence kit was completed. Petitioner’s DNA, or DNA consistent with Petitioner’s DNA, was
recovered from each of the victims. [Id.] After the State rested its case, Petitioner filed a motion
for judgment of acquittal and renewed his motions to dismiss on double jeopardy and speedy trial
grounds. [Id.] The court denied the motions. [Id.]

4 The circumstances surrounding how S.S. came to be in Petitioner’s vehicle were intentionally left vague at
Petitioner’s second trial because the jury in his first trial acquitted Petitioner on the count alleging he kidnapped S.S.
5 The license plate number provided by S.S. matched that provided to police by Charles Burton after the assault on
J.T.
The defense presented three witnesses, each relating to the charges involving J.T. [Id.] One
witness testified that the convenience store where J.T. stated she bought food before the assault
was closed at that time. [Id.] The other two witnesses testified that the alley behind their houses
was known for prostitution and that they saw a car parked in the alley on July 1, 2007, but they
did not hear any screaming coming from the vehicle. [Id.]

Outside of the presence of the jury, the court inquired of defense counsel whether she had
spoken with Petitioner regarding his right to testify. [Id.] Counsel informed the court she had
advised Petitioner about his right to testify and that the decision as to whether or not he would
testify was his. [Id.] Counsel told the court that after “long discussions” about the issue, Petitioner
had decided not to testify. [Id.] Counsel also presented the court with a written waiver, signed by
Petitioner, indicating he had been advised of his rights and was electing not to testify at trial. [ECF
Nos. 15-2, 15-5]
At the conclusion of the evidence, the jury found Petitioner guilty of Counts I through V,
constituting the two charges of forcible rape and the three charges of forcible sodomy relating to

S.S. and J.T. The jury found Petitioner not guilty of the charges related to M.W. and H.S., Counts
VI through X. [ECF No. 15-5] Petitioner filed a motion for judgment of acquittal or for a new
trial, which the trial court denied. [Id.]
D. Sentencing
Prior to his sentencing, Petitioner wrote a letter to the court advising it that he wished to
discharge his attorney and represent himself at sentencing. [ECF No. 28-1]. At the sentencing
hearing, the court inquired about the letter, and Petitioner indicated that he was dissatisfied with
counsel’s representation and reiterated that he wanted to represent himself at sentencing. [Id.] The
trial court asked Petitioner if he had any training as a lawyer, to which Petitioner replied that he
did not. [Id.] Petitioner also indicated he had previously “been through” a bench trial but that this
was his first experience with a jury trial. [Id.]
Upon questioning by the court, counsel stated she believed sentencing was an important
part of the case and she did not think Petitioner was competent to represent himself. [Id.] Counsel
then raised concerns about Petitioner’s mental health stating:

I appreciate his distress. He’s in a very difficult situation. He’s been
confined for over three years, for a substantial part of it, at least these last couple
of months, in solitary. He’s had no contact.
His mother has brought to me her concerns that he’s been in a deep
depression since the verdict has come in and that the letters she has received
indicate that he’s not thinking straight. I’m aware that he has a prior diagnosis
of bipolar disorder, which would be consistent with the behavior that we’re
seeing right now. [Id.]

Counsel requested that the court deny Petitioner’s request to remove her to ensure Petitioner
maintained competent representation but allow Petitioner to express his concerns directly to the
court during the proceeding. [Id.]
The court denied Petitioner’s request to represent himself at his sentencing. [Id.] In doing
so, the court acknowledged Petitioner’s dissatisfaction with counsel’s representation but noted that
counsel represented Petitioner throughout the trial, was knowledgeable about the relevant issues,
raised a substantial number of legal issues on his behalf, and had been a strong advocate for him.
[Id.] The court also found that “sentencing includes a number of legal matters that a competent
lawyer has been trained to deal with” and that Petitioner “deserve[d] the benefit of a competent
lawyer for the sentencing process.” [Id.] During the sentencing hearing, the court sought
Petitioner’s input on several occasions and spoke with Petitioner at length about the information
contained in the sentencing assessment report. [Id.] The court sentenced Petitioner to two
concurrent life sentences on Counts I and II, to run consecutively with three concurrent life
sentences on Counts III, IV, and V. [ECF Nos. 15-5, 28-1].
E. Direct appeal
Petitioner appealed his convictions to the Missouri Court of Appeals for the Eastern
District, raising four issues. [ECF No. 15-3] First, Petitioner argued the trial court violated his
Missouri constitutional and statutory speedy trial rights and his Sixth Amendment speedy trial
right by denying Petitioner’s motion to dismiss the charges for failing to timely retry the case after

his first trial ended in a hung jury. [Id.] Next, Petitioner argued that the trial court plainly erred and
violated Petitioner’s rights to due process and self-representation under the Fifth, Sixth, and
Fourteenth Amendments by denying his voluntary and intelligent waiver of counsel at sentencing.
[Id.] Petitioner also argued that the trial court erred in denying his motion to dismiss certain counts
on double jeopardy grounds based on Petitioner’s acquittal of related charges during his first trial,
and that the trial court abused its discretion in denying Petitioner’s motion for mistrial after a State
witness testified in violation of the court’s limiting order. [Id.] The Missouri Court of Appeals
affirmed the conviction in an unpublished per curiam order accompanied by a memorandum sent
to the parties setting forth the reasons for the order. State v. Buford, No. ED 95825, 370 S.E. 3d

887 (Mo. App. 2012). [ECF No. 15-6].
F. Post-conviction proceedings
1. Rule 29.15 proceeding
Petitioner filed a premature pro se post-conviction motion under Missouri Supreme Court
Rule 29.15, that was subsequently amended by appointed counsel. [ECF No. 15-7] In his first
claim, Petitioner asserted his trial and appellate attorneys were ineffective for failing to challenge
Petitioner’s retrial and conviction on Counts I and II, regarding S.S., on double jeopardy grounds
pursuant to section 56.087 of the Missouri Revised Statutes,6 which provides that a dismissal of

6 Section 56.087 RSMo provides in pertinent part:
…
charges after double jeopardy has attached is with prejudice unless the defendant consents to
dismissal without prejudice. [Id.] Petitioner asserted that double jeopardy attached on Counts I and
II after the jury has been impaneled and sworn during his first trial, and the State’s subsequent
dismissal of and reindictment of the charges on which the jury was hung violated Petitioner’s right
to be free from double jeopardy. [Id.] In his second and third claims, Petitioner asserted his

appellate counsel was ineffective for failing to assert on direct appeal a claim that the trial court
erred in overruling Petitioner’s motion to sever offenses and that his trial counsel was ineffective
for advising Petitioner not to testify in his own defense at trial. [Id.] The State conceded the merits
of Petitioner’s first claim, and the parties agreed that an evidentiary hearing was necessary only as
to Petitioner’s third claim, regarding the circumstances surrounding Petitioner’s decision not to
testify in his own defense. [ECF 15-7, 27-2]
Petitioner and his second trial attorney testified at the post-conviction evidentiary hearing.
[ECF 27-2] Counsel testified that Petitioner’s defense at trial was that the victims were prostitutes,
the sexual encounters were consensual, and the assault allegations were the result of Petitioner’s

refusal to pay the women after the encounters. [Id.] Counsel did not believe Petitioner’s testimony
was necessary to his defense because other evidence suggested that the victims were prostitutes
and the circumstances surrounding the encounters supported Petitioner’s defense. [Id.] Counsel
testified she read Petitioner’s testimony from his first trial and believed Petitioner sounded “like
he was being arrogant.” [Id.] Counsel also consulted with Petitioner’s first trial counsel to get her

2. A dismissal filed by the prosecuting or circuit attorney prior to the time double jeopardy has attached is without
prejudice. A dismissal filed by the prosecuting or circuit attorney after double jeopardy has attached is with
prejudice, unless the criminal defendant has consented to having the case dismissed without prejudice.
3. A dismissal without prejudice means that the prosecutor or circuit attorney has complete discretion to refile the
case, as long as it is refilled within the time specified by the applicable statute of limitations. A dismissal with
prejudice means that the prosecutor or circuit attorney cannot refile the case.
4. For the purposes of this section, double jeopardy attaches in a jury trial when the jury has been impaneled and
sworn. It attaches in a court-tried case when the court begins to hear evidence.
opinion of whether Petitioner’s testimony was helpful to his defense during the first trial. [Id.]
After reviewing the transcript and consulting with Petitioner’s prior counsel, counsel informed
Petitioner that she did not think his prior trial testimony was either effective or helpful to his
defense, and it was not essential for him to testify to fulfill their trial strategy. [Id.] Counsel advised
Petitioner that he had a right to testify and it was ultimately his decision whether to testify, but that

she did not believe he should testify. [Id.] Counsel stated Petitioner oscillated on whether he should
testify, and that they discussed the issue on several occasions before he decided against testifying.
[Id.]
Petitioner testified that he and counsel discussed whether he should testify in his own
defense at his second trial. [Id.] Petitioner disagreed with counsel’s assessment of his testimony
during his first trial, believing that his testimony sounded sincere. [Id.] Petitioner stated he believed
his testimony was necessary to convey his innocence to the jury but that he followed counsel’s
recommendation. [Id.] Petitioner acknowledged that both counsel and the trial court advised him
that it was his decision whether he would testify. [Id.]

The motion court granted Petitioner’s motion as to his first claim, finding he was entitled
to dismissal of the charges in Counts I and II, pursuant to section 56.087 RSMo, because double
jeopardy attached after the first jury panel was impaneled and sworn. [Id.] Accordingly, the court
vacated Petitioner’s convictions on Counts I and II. [Id.] The motion court denied Petitioner’s
second and third claims, finding Petitioner had failed to demonstrate that he was entitled to relief.
[Id.]
On his second claim, the court found Petitioner’s appellate counsel did not provide
deficient representation by electing not to challenge the trial court’s denial of Petitioner’s motion
to sever the offenses or, in the alternative, motion to dismiss for improper joinder. [Id.] The motion
determined that joinder of offenses was proper because the crimes were of the same or similar
character, the crimes occurred relatively close in time, and a similar vehicle was used in each
crime. [Id.] The court also concluded severance was not warranted because the evidence relating
to each offense was distinct and uncomplicated, and the jury’s acquittal on five of the ten counts
demonstrated the jury’s ability to distinguish among the charges. [Id.]

On his final claim, the motion court concluded Petitioner’s trial counsel did not provide
deficient representation by advising Petitioner not to testify at trial. [Id.] The court determined the
credible testimony at the evidentiary hearing demonstrated that counsel’s advice to Petitioner not
to testify was carefully considered by counsel after she reviewed the prior testimony and consulted
with Petitioner’s prior attorney. [Id.] The court found counsel was not ineffective for advising
Petitioner not to testify because counsel believed he would make a bad witness and counsel’s
reasons for advising Petitioner not to testify were part of a reasonable trial strategy. [Id.]
2. Appeal
Petitioner presented two points in his post-conviction appeal, challenging as violations of

his Fifth, Sixth, and Fourteenth Amendment rights to due process and the effective assistance of
counsel his trial attorney’s advice not to testify in his own defense at trial and his appellate
attorney’s failure to assert on direct appeal that the trial court erred in denying Petitioner’s motion
to sever offenses, or in the alternative, motion to dismiss for improper joinder. [ECF 15-8] The
Missouri Court of Appeals affirmed the motion court’s judgment in an unpublished per curiam
order accompanied by a memorandum sent to the parties only setting forth the reasons for the
order. Buford v. State, No. ED 103168, 497 S.W.3d 872 (Mo. App. 2016). [ECF No. 15-10]
II. Petitioner’s Grounds for Federal Habeas Relief

In the habeas petition, Petitioner asserts the following five grounds for relief:
(1) The trial court erred in denying Petitioner’s motion to dismiss the charges for the
failure to timely retry the case after a hung jury;

(2) The trial court erred in denying Petitioner’s request to represent himself at sentencing;

(3) Trial counsel provided ineffective assistance by improperly advising Petitioner not to
testify in his own defense;

(4) Appellate counsel provided ineffective assistance by failing to appeal the trial court’s
decision denying Petitioner’s motion to sever offenses, or in the alternative, motion to
dismiss for improper joinder;

(5) Trial counsel provided ineffective assistance by failing to seek the dismissal of all
seven of the recharged counts involving S.S., M.W., and H.S. as violative of
Petitioner’s right to be free from double jeopardy. [ECF No. 1]
Respondent counters that the Missouri Court of Appeals considered Petitioner’s first four
grounds on their merits, and that those grounds should be denied because the Court of Appeals’
decisions on those issues are not contrary to, or an unreasonable application of, clearly established
federal law, and are not based on an unreasonable determination of the facts. [ECF No. 15]
Respondent contends that Ground Five is procedurally barred and, alternatively, that the claim
lacks merit. [ECF No. 15]
III. Discussion
A. Claims addressed on the merits
1. Standard for habeas review
A prisoner in custody under the judgment and sentence of a state court may only seek
habeas relief on the ground that his custody violates the United States Constitution, laws, or
treaties. 28 U.S.C. §2254(a); see also 28 U.S.C. §§ 2241(c)(3), 2241(d). When considering a state
prisoner’s habeas petition, a federal court is bound by the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA), see 28 U.S.C. § 2254(d), to exercise “only a limited and deferential
review of underlying state court decision.” Nash v. Russell, 807 F.3d 892, 897 (8th Cir. 2015)
(internal quotation marks omitted) (quoting Worthington v. Roper, 631 F.3d 487, 495 (8th Cir.
2011)). A federal court may not grant habeas relief to a state prisoner unless a state court’s
adjudication on the merits 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 federal law if it “arrives at a
conclusion opposite to that reached by [the Supreme] Court on a question of law or if [it] decides
a case differently than [the Supreme] Court has on a set of materially indistinguishable facts.”
Williams v. Taylor, 529 U.S. 362, 412-13 (2000). A state court decision constitutes an
unreasonable application of clearly established federal law if it “identifies the correct governing
legal principle from [the Supreme] Court’s decisions but unreasonably applies that principle to the
facts of the prisoner’s case.” Id. at 413. The test of reasonableness is an objective one. Id. at 409-

10. When reviewing a matter under Section 2254(d)(1), a federal habeas court “is limited to the
record that was before the state court that adjudicated the claim on the merits.” Cullen v. Pinholster,
563 U.S. 170, 181-82 (2011).
Under section 2254(d)(2), a petitioner may obtain relief if the state court’s rejection of his
claim 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). A federal habeas court must “accord the
state trial court substantial deference” and will not supersede the state court’s factual determination
if “reasonable minds reviewing the record might disagree about the finding in question.” Brumfield
v. Cain, 576 U.S. 305, 314 (2015) (internal quotation marks omitted) (quoting Wood v. Allen, 558
U.S. 290, 301 (2010)). A state court’s factual determination is not unreasonable “merely because
[a] federal habeas court would have reached a different conclusion in the first instance.” Wood,
558 U.S. at 301.
A state court’s factual determination is presumed correct unless the petitioner rebuts the
presumption by clear and convincing evidence. 28 U.S.C. §2254(e)(1). The presumption of

correctness applies to the state court’s factual determinations at either the trial or appellate levels,
Smulls v. Roper, 535 F.3d 853, 864-65 (8th Cir. 2008) (en banc), and to a state court’s implicit
findings of fact, Grass v. Reitz, 749 F.3d 738, 743 (8th Cir. 2014). Federal habeas courts defer to
a state court’s credibility determinations and grant habeas relief only if those determinations were
objectively unreasonable based on the record. Smulls, 535 F.3d at 864.
2. Ground one: Trial court error – Motion to dismiss
In his first ground, Petitioner claims the trial court erred in denying his motion to dismiss
the charges against him because the State failed to timely retry the charges after a hung jury. [ECF
No. 1] Petitioner asserts that the delay of 8 months and 20 days between the conclusion of his first
trial in October 2009, and the beginning of his second trial in July 2010, constituted a violation of

his right to a speedy trial as guaranteed by the Sixth and Fourteenth Amendments. [Id.] Petitioner
contends the decision of the Missouri Court of Appeals rejecting the merits of his claim constituted
an unreasonable application of United States Supreme Court precedent, as well as an unreasonable
determination of the facts in the record. [Id.]
Petitioner filed three pre-trial motions seeking dismissal of the charges against him based
on a violation of his speedy trial rights, each of which the trial court denied. [ECF Nos. 15-5, 15-
2] On direct appeal, Petitioner challenged the trial court’s denial of the motions, asserting a
violation of his Sixth Amendment right to a speedy trial. [ECF No. 15-3] In support, Petitioner
asserted that he filed a request for a speedy trial; requested no continuances; and that he suffered
prejudice from the delay in the form of extended incarceration, the stigma of unresolved
accusations, and continued anxiety over the possibility of wrongful conviction. [Id.]
To assess whether a defendant’s right to a speedy trial has been violated, the court balances
four factors: (1) the length of delay; (2) the reason for the delay; (3) the defendant’s assertion of
his right; and (4) prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 530-33 (1972). With

respect to the length of the delay, unless the delay is presumptively prejudicial the court need not
proceed with its analysis. Barker, 407 U.S. at 530; Doggett v. United States, 505 U.S. 647, 652
(1992).
In reviewing Petitioner’s speedy trial claim, the Missouri Court of Appeals set forth the
four-factor Barker test and observed that a delay of eight months or more is presumptively
prejudicial in Missouri. [ECF No. 15-6]. Therefore, because Petitioner experienced a delay of 8
months and 20 days, the Court of Appeals applied the Barker factors.
Following an examination of the Barker factors, the Court of Appeals concluded as
follows:

In this case, the first continuance, from January to February, was because the
prosecutor had a conflict with another trial. The second continuance, from
February to April, was because the State sought transcripts from the first trial
that were not yet completed and from the unavailability of one of the State’s
witnesses. With respect to the witness, the State asked [Petitioner] to stipulate,
but the [Petitioner] refused. Finally, the last continuance, from April to
July, was the result of [Petitioner] arguing his motion to dismiss before the
court in April. Thus, the State had valid reasons for its continuances and at
least one of the delays was fully attributable to [Petitioner]. We also note
[Petitioner] filed his request for a speedy trial on January 8, 2010. [Id.]

The Court of Appeals also determined that Petitioner did not suffer any prejudice from the
delay of his retrial. [Id.] In assessing this factor, the Court noted Petitioner failed to present any
evidence that he was prejudiced by the delay and instead made only conclusory allegations that he
suffered from extended incarceration, the stigma of unresolved accusations, and continued anxiety
over the possibility of a wrongful conviction. [Id.] After weighing the relevant factors, the Court
held the trial court did not err in denying Petitioner’s motion to dismiss the charges for failing to
timely retry the case. [Id.]
In this proceeding, Petitioner contends the Court of Appeals’ finding that he did not suffer
any prejudice was unreasonable, in that “[t]here is no doubt” that the State would have been unable

to secure J.T. as a witness at the second trial had the trial not been delayed. [Id.] Petitioner,
however, has provided no support for this claim. While J.T. may have been unavailable for trial in
October 2009, Petitioner’s suggestion that J.T. was unavailable for trial at all times prior to the
July 2010 retrial is nothing more than unsupported speculation.
Petitioner also asserts that the Court of Appeals unreasonably determined the facts when it
attributed to Petitioner the delay that resulted from him pursuing his right to a speedy trial,
contending such a finding penalizes Petitioner for asserting his constitutional right.7 [ECF Nos. 1,
26] Delays caused by the defense, however, weigh against the defendant. Vermont v. Brillon, 556
U.S. 81, 90 (2009). Consequently, any delay caused by Petitioner in prosecuting his motion is

properly attributable to him. Based on the foregoing, the Court finds that the state court’s decision
was not based on an unreasonable application of clearly established federal law as determined by

7 In his reply, Petitioner asserts the Missouri Court of Appeals “counted time against petitioner for pursuing his right
to speedy trial in the higher state courts as one of the reasons for the [delay].” [ECF No. 26] After a thorough review
of the Court of Appeals’ memorandum, this Court was unable to locate any support for Petitioner’s assertion that the
Court of Appeals made such a finding. Instead, the Court of Appeals attributed the final continuance, from April
2010 to July 2010, to Petitioner because it “was the result of [Petitioner] arguing his motion to dismiss before the
court in April.” [ECF No. 15-6] In that sentence, “the court” clearly refers to the trial court and not to the Missouri
Supreme Court. At the hearing on the motion to dismiss, it was revealed that Petitioner had previously sought, and
was denied, a “writ” from the Missouri Supreme Court regarding Petitioner’s rights to a speedy trial and to be free
from double jeopardy under the Missouri Constitution. [ECF No. 15-1] The record does not establish that
Petitioner’s petition for a writ from the Missouri Supreme Court delayed his second trial. [Id.] Instead, the record
demonstrates the trial court continued the April 2010 setting to conduct a hearing on Petitioner’s “motion to
dismiss,” the first of which was filed on April 19, 2010. [ECF Nos. 15-5, 27-1] For purposes of addressing the
merits of the §2254 petition, we will treat Petitioner’s allegation as a claim that a court errs if it attributes delay
resulting from a defendant’s prosecution of a motion to dismiss asserting a violation of his speedy trial rights to the
defendant.
the United States Supreme Court. Furthermore, Petitioner has not shown that the state court’s
determination resulted in a decision that was based on an unreasonable determination of the facts
in light of the evidence presented. Petitioner’s Ground One is denied.
3. Ground Two: Trial court error – Denial of Petitioner’s right to self-
representation
In Ground Two, Petitioner argues the trial court erred in denying his request to represent
himself at sentencing because his waiver of counsel was voluntary, and intelligently and
knowingly made. [ECF No. 1] Respondent contends the trial court did not abuse its discretion in
denying Petitioner’s request, and that the Missouri Court of Appeals’ decision affirming the trial
court constituted a reasonable application of federal law.

Prior to sentencing, Petitioner wrote a letter to the trial court informing the court that he
wished to discharge his attorney and represent himself at sentencing. [ECF No. 28-1]. At the
sentencing hearing, the court inquired about the letter, and Petitioner stated that he was dissatisfied
with counsel’s representation and reiterated that he wanted to represent himself. [Id.] The trial
court denied Petitioner’s request. [Id.]
Trial counsel did not raise the self-representation issue in a post-trial motion, thus failing
to preserve the issue for appeal. On direct appeal, Petitioner argued the trial court violated his Sixth
Amendment right to self-representation, asserting the court plainly erred in denying his timely,
clear, and unequivocal request to represent himself at sentencing. [ECF No. 15-3] More

specifically, Petitioner maintained the trial court erred in justifying the denial based on Petitioner’s
lack of technical legal knowledge rather than on a determination of whether Petitioner could
knowingly and competently waive his right to counsel. [Id.] The Missouri Court of Appeals held
that trial court did not plainly err in denying Petitioner’s request to represent himself at sentencing,
finding Petitioner’s request was untimely and Petitioner failed to demonstrate prejudice from the
alleged error. [ECF No. 15-6] In his habeas petition, Petitioner asserts the Missouri Court of
Appeals’ decision affirming the trial court’s denial based on its finding that Petitioner’s request
was untimely and Petitioner had made no showing of prejudice, was an unreasonable application
of United States Supreme Court precedent and an unreasonable determination of the facts based
on the record.8 [ECF No.1]

“[A] criminal defendant has the right to waive his right to counsel at trial and to represent
himself as long as the waiver is both voluntary, and intelligently and knowingly made.” Meyer v.
Sargent, 854 F.2d 1110, 1114 (8th Cir. 1988) (citing Edwards v. Arizona, 451 U.S. 477, 482 (1981)
and Faretta v. California, 422 U.S. 806, 835 (1975)). The right to self-representation, however, is
not absolute, Martinez v. Ct. of Appeal of California, Fourth App. Dist., 528 U.S. 152, 161 (2000),
and is unqualified only if demanded before trial. United States v. Wesley, 798 F.2d 1155, 1155
(8th Cir. 1986). Once trial commences, a defendant’s right to discharge his attorney and proceed
pro se is “sharply curtailed[,]” United States v. Brown, 744 F.2d 905, 908 (2d Cir. 1984) (citations
omitted), and becomes subject to the trial court’s discretion. Wesley, 798 F.2d at 1155–56. “There

must be a showing that the prejudice to the legitimate interests of the defendant overbalances the
potential disruption of proceedings already in progress, with considerable weight being given to

8 Petitioner failed to preserve this claim for state appellate review by including it in a timely post-trial motion. As
such, the Missouri Court of Appeals reviewed this claim for plain error only. Claims reviewed for plain error by a
state appellate court are procedurally defaulted and unreviewable in a federal habeas proceeding, absent cause and
prejudice. Clark v. Bertsch, 780 F.3d 873, 876 (8th Cir. 2015) (quoting Hayes v. Lockhart, 766 F.2d 1247, 1253 (8th
Cir. 1985) (holding state court’s plain-error review does not excuse procedural default). A respondent, however,
may waive the defense of procedural default by failing to raise the issue in its response to a federal habeas petition.
Trest v. Cain, 522 U.S. 87, 88-90 (1997) (procedural default is not a jurisdictional matter but is a defense which the
state is obligated to raise and preserve, thus a court is not required to raise sua sponte the petitioner’s procedural
default of a claim); see King v. Kemna, 266 F.3d 816, 821-22 (8th Cir. 2001) (holding a federal court has the
discretion to consider an issue of procedural default sua sponte); Goodwin v. United States, 869 F.3d 636, 638 (8th
Cir. 2017) (the government’s failure to assert procedural default generally waives the defense). Here, Respondent
failed to assert that Petitioner’s Claim Two was procedurally barred, resulting in its waiver of the defense.
Accordingly, this Court addressed the merits of Petitioner’s claim.
the trial judge’s assessment of this balance.” Brown, 744 F.2d at 908 (quoting United States ex rel.
Maldonado v. Denno, 348 F.2d 12, 15 (2d Cir.1965)).
In examining Petitioner’s claim, the Missouri Court of Appeals explained:
However, we note [Petitioner’s] invocation of his right to self-
representation was untimely in this case. [Petitioner] did not request to represent
himself until before the sentencing hearing. Once the trial had begun with
[Petitioner] represented by counsel, his right thereafter to discharged his lawyer
and to represent himself is sharply curtailed. United States v. Brown, 744 F.2d
905, 908 (2d Cir. 1984); see also Wood v Quarterman, 491 F.3d 196, 197 (5th
Cir. 2007) (where the court found the trial court had discretion to deny the
defendant’s motion when the defendant made an untimely request to represent
himself after the jury returned a guilty verdict against him right before the
sentencing phase of the trial). There must be a showing that the prejudice to the
legitimate interest of the defendant overbalances the potential disruption of
proceedings already in progress, with considerable weight being given to the
trial judge’s assessment of this balance. Id.
In this case, the trial court had discretion to deny [Petitioner’s] request
because it was untimely. The record shows [Petitioner’s] counsel had been with
him since the beginning of trial. Further, there was no showing that [Petitioner]
would suffer any prejudice from being represented, which become a
consideration when the request to represent himself is untimely as it was here.
[ECF No. 15-6]

Here, the record demonstrates that the timing of Petitioner’s request (after guilty phase and
before sentencing phase) vested the trial court with discretion in ruling on Petitioner’s request to
proceed pro se. The record also demonstrates that Petitioner lacked technical legal training and
had limited prior personal experience with criminal trials, and that the trial court was properly
concerned about the impact of these deficiencies on the sentencing proceeding. [Id.] Furthermore,
throughout the sentencing hearing, the court provided Petitioner with numerous opportunities to
address his concerns directly with the court, thus mitigating any potential prejudice. [Id.]
Consequently, the Missouri Court of Appeals’ decision finding Petitioner was not entitled
to relief because he failed to establish that he suffered any prejudice as a result of the trial court’s
denial, was not an unreasonable application of clearly established federal law as determined by the
United States Supreme Court. Furthermore, Petitioner has not shown that the Missouri Court of
Appeals’ determination was based on an unreasonable determination of the facts based on the
record.
4. Grounds Three and Four: Ineffective assistance of counsel

Petitioner asserts in Grounds Three and Four that he received ineffective assistance of trial
counsel and of appellate counsel, respectively. [ECF No. 1]. Respondent argues the Missouri Court
of Appeals addressed these claims on the merits and that this court should defer to the state court’s
decision and deny these grounds for relief. [ECF No. 15]
To prevail on a claim of ineffective assistance of counsel, a habeas petitioner must show
that: (1) “counsel’s representation fell below an objective standard of reasonableness[;]” and (2)
“the deficient performance prejudiced the defense[.]” Strickland v. Washington, 466 U.S. 668,
687-88 (1984). The first prong requires a showing “that counsel made errors so serious that counsel
was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. at
687. Defense counsel’s conduct is presumed to fall within the wide range of professionally

reasonable assistance. Id. at 689. “[S]tragic 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 reasonably precisely to the extent that reasonable professional
judgments support the limitations on investigation.” Id. at 690-91.
To prove prejudice, a petitioner must show a reasonable probability exists “that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694.
“A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id.
A court need not address both prongs of the Strickland test if it finds the habeas petitioner has not
established one of the prongs. Id. at 697.
“Establishing that a state court’s application of Strickland was unreasonable under §
2254(d) is all the more difficult.” Harrington v. Richter, 562 U.S. 86, 105 (2011). “The standard
created by Strickland and §2254(d) are both ‘highly deferential,’ and when the two apply in
tandem, review is ‘doubly’ so.” Id. (internal citations omitted). It is not sufficient for a petitioner
to “show that he would have satisfied Strickland’s test if his claims were being analyzed in the

first instance[.]” Bell v. Cone, 535 U.S. 685, 698-99 (2002) “Rather, he must show that the [state
court] applied Strickland to the facts of his case in an objectively unreasonable manner.” Id. at
699.
a. Ground Three: Ineffective assistance for advising Petitioner not to testify
at trial
In Ground Three, Petitioner contends that his trial counsel provided ineffective assistance
by advising Petitioner not to testify in his own defense at trial. [ECF Nos. 1, 26] Petitioner asserts
the decision of the Missouri Court of Appeals affirming the motion’s court’s denial of his claim
was contrary to, or involved an unreasonable application of, clearly established federal

constitutional law. [Id.] Petitioner also argues that the decision was based upon an unreasonable
determination of the facts, in that the state courts’ findings were rebutted by clear and convincing
evidence. [Id.] Specifically, Petitioner contends that the fact that his first trial, in which he did
testify, ended in either a hung jury or an acquittal on the charges but his second trial, in which he
did not testify, resulted in his conviction on some of the charges demonstrates that he was
prejudiced by trial counsel’s advice not to testify. [Id.] Petitioner asserts that his testimony would
have convinced the jury to acquit him of the charges with respect to J.T. [Id.]
At the evidentiary hearing on the post-conviction motion, counsel testified that she advised
Petitioner not to testify at his retrial after her review of Petitioner’s prior trial testimony and her
consultation with the Petitioner’s first trial attorney. [ECF No. 27-2] Counsel testified she believed
Petitioner’s prior trial testimony was neither effective nor helpful to his defense. Moreover,
counsel concluded that Petitioner’s testimony was not essential to fulfill their trial strategy. [Id.]
In denying Petitioner’s claim, the motion court found the credible testimony at the evidentiary
hearing demonstrated that counsel’s advice to Petitioner was carefully considered and was based

on reasonable trial strategy. [ECF No. 15-7]
On appeal, the Missouri Court of Appeals deferred to the motion court’s credibility
determinations and agreed with the motion court that counsel’s advice to Petitioner was based on
reasonable trial strategy. [ECF No. 15-10] Furthermore, the Court of Appeals found that Petitioner
failed to prove he was prejudiced by counsel’s alleged deficient representation. [Id.] In assessing
the second prong of the Strickland standard, the Missouri Court of Appeals explained:
[Petitioner] would have testified that the sex with J.T. was consensual, that
he offered J.T. money for sex, and that the problems only started when a witness
interrupted them. Trial Counsel did not believe [Petitioner’s] testimony was
necessary to fulfill their defense strategy, as she thought the fact that J.T. was a
prostitute and that it was consensual would come out through the testimony of
other witnesses. In fact, J.T.’s testimony revealed she was a prostitute and was
hired to perform oral sex on [Petitioner]. Even in light of that information, the jury
found [Petitioner] guilty of offenses relating to J.T. [Petitioner] has failed to prove
by a preponderance of the evidence that the jury would have found his testimony
more credible than testimony from J.T., the witness who approached the vehicle,
the medical examiner, and police officers working the case. See Rule 29.15 (i).
Accordingly, [Petitioner] has failed to show a reasonable probability that, but for
Trial Counsel’s alleged error, the outcome of the proceeding would have been
different. [Id.]

The Court concludes that the Missouri Court of Appeals properly applied Strickland and
determined that Petitioner failed to satisfy his burden of demonstrating that counsel’s performance
fell outside the range of reasonable professional assistance or that he was prejudiced by counsel’s
alleged deficient representation. The Missouri Court of Appeals’ conclusion that trial counsel was
not ineffective was neither contrary to, nor an unreasonable application of, Strickland, and was not
based upon an unreasonable determination of the facts based on the record. Accordingly,
Petitioner’s Ground Three is denied.
b. Ground Four – Ineffective assistance of appellate counsel
In Ground Four, Petitioner claims that appellate counsel was ineffective for failing to raise
on direct appeal a claim that the trial court erred in overruling his motion to sever offenses or, in

the alternative, motion to dismiss for improper joinder. [ECF No. 1, 26] Specifically, Petitioner
contends that joinder of the offenses was improper because the incidents were not connected, were
not part of a common scheme or plan, and were not of the same or similar character. [Id.] Petitioner
also contends the trial court’s failure to sever the charges rendered his trial fundamentally unfair.
[Id.] Petitioner maintains he was prejudiced by having to defend against charges involving four
different victims and he would have been acquitted if at trial he had only faced the charges related
to J.T. [Id.] Petitioner asserts the decisions of the state courts concluding he did not receive
ineffective assistance of appellate counsel were either contrary to, or involved an unreasonable
application of, clearly established federal constitutional law, and that the decisions were based
upon an unreasonable determination of the facts. [Id.]

The Sixth Amendment guarantees the right to effective assistance of counsel on direct
appeal. See Evitts v. Lucey, 469 U.S. 387, 396-97 (1985); Douglas v. California, 372 U.S. 353,
357-58 (1963). The proper standard for evaluating a claim of ineffective assistance of appellate
counsel is set forth in Strickland. Smith v. Robbins, 528 U.S. 259, 285 (2000). Petitioner must
therefore show that his appellate attorney’s performance was below the reasonable standard of
competence and that performance was prejudicial. See Strickland, 466 U.S. at 687-88; Gee v.
Groose, 110 F.3d 1346, 1352 (8th Cir. 1997).
“When appellate counsel competently asserts some claims on a defendant’s behalf, it is
difficult to sustain a[n] ineffective assistance claim based on allegations that counsel was deficient
for failing to assert some other claims.” Link v. Luebbers, 469 F.3d 1197, 1205 (8th Cir. 2006).
“This is because one of appellate counsel’s functions is to winnow the available arguments and
exercise judgment about which are most likely to succeed on appeal.” Gray v. Norman, 739 F.3d
1113, 1118 (8th Cir. 2014). To maximize the likelihood of success, appellate counsel need not,
and should not, raise every non-frivolous claim. Robbins, 528 U.S. at 288. “Generally, only when

ignored issues are clearly stronger than those presented, will the presumption of effective
assistance of counsel be overcome.” Id. (quotation omitted). To establish that appellate counsel’s
performance was prejudicial, a petitioner “must show a reasonable probability that, but for his
counsel’s unreasonable [conduct], he would have prevailed on his appeal.” Id. at 285.
“Improper joinder does not, in itself, violate the Constitution. Rather, misjoinder [rises] to
the level of constitutional violation only if it results in prejudice so great as to deny a defendant
his Fifth Amendment right to a fair trial.” United States v. Lane, 474 U.S. 438, 446 n. 8 (1986).
Misjoinder requires reversal only if it resulted in actual prejudice, in that it “had substantial and
injurious effect or influence on determining the jury’s verdict.” Id. at 449 (quoting Kotteakos v.

United States, 328 U.S. 750, 766 (1946)). Factors which may lead to a finding of prejudice include,
(1) the court’s failure to give limiting instructions; (2) evidence of guilt that is not overwhelming;
(3) the admission of evidence that would have been inadmissible without the improperly joined
defendants or charges; (4) the evidence on the improperly joined charges was not distinct or easily
segregated; and (5) the en masse trial of numerous defendants. United States v. Mann, 701 F.3d
274, 290 (8th Cir. 2012). Similarly, to obtain habeas relief for a failure to sever, the petitioner must
demonstrate that “the failure to grant severance rendered the trial ‘fundamentally unfair.’”
Wharton-El v. Nix, 38 F.3d 372, 374 (8th Cir. 1994) (quoting Hollins v. Department of
Corrections, 969 F.2d 606, 608 (8th Cir. 1992)).
In his Rule 29.15 post-conviction motion and subsequent appeal, Petitioner claimed
appellate counsel was ineffective for failing to appeal the trial court’s denial of his motion to sever
the offense or, in the alternative, motion to dismiss for improper joinder. [ECF No. 15-8]. The
motion court determined that Petitioner’s appellate counsel was not ineffective for failing to raise
the claim on appeal because joinder was proper due to the similar character of the charged crimes,

and severance was not required because the evidence related to each offense was distinct and
uncomplicated. [ECF No. 15-7]
In affirming the denial of Petitioner’s claim of ineffective assistance of appellate counsel,
the Missouri Court of Appeals explained:
A criminal defendant does not have a state or federal constitutional
right to be tried [on] only one crime at a time. State v. Smith, 886 S.W.2d 194,
197 (Mo. App. E.D. 1994). Liberal joinder of offenses is favored in the
interests of judicial economy. State v. Reeder, 182 S.W.3d 569, 576 (Mo. App.
E.D. 2005). Joinder is proper if the offenses are, inter alia, of the same or
similar character. Rule 23.05; section 545.140.2 RSMo 2000. The tactics used
in separate offenses do not have to be identical to be considered of the same or
similar character for joinder purposes. State v. McMillon, 436 S.W.3d 663, 670
(Mo. App. E.D. 2014). Several nonexclusive factors we may consider to
determine if a defendant’s tactics are similar in character include, (1) the
commission of the same type of offenses; (2) victims of the same sex or age
group; (3) offenses occurring in a common geographic region; and (4) offenses
closely related chronologically. Id.; Reeder, 182 S.W.3d at 576-77.

As an initial note, we recognize that [Petitioner] remains convicted on
only three of the ten charges on which he was indicted. However, as the
Motion to Sever was filed when [Petitioner] was facing ten charges, we will
analyze joinder as to all charges. See Reeder, 182 S.W.3d at 573, 576-77 (this
Court analyzed two events related to all counts in the indictment, even though
less charges were actually submitted to the jury and the jury acquitted on one
charge).

We agree with the motion court that “it is clear the crimes here were of
the same or similar character so as to justify joinder.” [Petitioner] was charged
with rape and sodomy against all four women. Additionally, the victim and
alleged victims testified to a similar narrative of events, including getting in
[Petitioner’s] gold vehicle and [Petitioner] driving to a secluded location. Each
occurrence included oral sex and sexual intercourse. Each woman testified to
being in the same position, laying on her stomach in a reclined seat, facing the
rear windshield. Further, each female victim or alleged victim was alone before
entering [Petitioner’s] car. The incidents happened during a five[-]month
period and, undisputedly, were within close proximity to each other. Based on
these similarities, the motion court did not clearly err in finding the charges
properly joined.

Having determined the joinder of the offenses was proper, the Missouri Court of Appeals
then assessed whether the trial court abused its discretion in denying the motion to sever the
charges into four separate trials. The court explained:
We will only reverse a trial court’s denial of a motion to sever charges if
the trial court abused its discretion in denying the motion and there is a clear
showing of prejudice. McMillon, 436 S.W.3d at 670. A trial court abuses its
discretion when its ruling is clearly against the logic of the circumstances and is
so arbitrary and unreasonable as to shock the sense of justice and indicate a lack
of careful consideration. Id. In assessing prejudice, a court should consider the
number of offenses charged, the complexity of the evidence to be offered, and
the ability of the jury to distinguish the evidence and apply the law intelligently
to each offense. State v. Love, 293 S.W. 3d 471, 477 (Mo. App. E.D. 2009).
Additionally, severance of offenses shall be ordered only after the defendant
“‘makes a particularized showing of substantial prejudice if the offense is not
tried separately’ and after the ‘court finds the existence of a bias or
discrimination against the party that requires a separate trial of the offense.’”
State v. McKinney, 314 S.W. 3d 339, 342 (Mo. Banc 2010) (quoting Rule
24.07(b) and (c)).

The Court of Appeals found Petitioner’s contentions that the prosecutor could have used
the evidence as to all counts to “bolster” the evidence presented on each specific charge, and that
evidence of his guilt as to one alleged victim could be used against him on the other counts, failed
to make a particularized showing of substantial prejudice resulting from the trial court’s refusal to
sever the charges. Instead, the Court of Appeals determined that the evidence presented at trial
regarding each offense was distinct and uncomplicated; the jury was instructed that it must
consider each offense separately; and the jury’s acquittal of Petitioner on five of the ten counts
demonstrated the jury’s ability to distinguish the evidence and apply the law to each specific
charge. The Court of Appeals held that Petitioner failed to demonstrate that his appellate counsel
was ineffective for failing to appeal the trial court’s refusal to sever the charges against him
because he had not demonstrated that the claim would have been successful on appeal and, thus,
Petitioner could not establish prejudice from counsel’s alleged error.
Here, Petitioner does not support his contention that the Missouri Court of Appeals’
decision was contrary to, or involved an unreasonable application of, clearly established federal

constitutional law, or that the decision was based on an unreasonable determination of the facts.
Instead, Petitioner simply presents the conclusory assertion that he was substantially prejudiced
by the joinder of the offenses for trial and that “he would have been acquitted of the charges
relating to [J.T.]” if he “would have only faced J.T. at a trial[.]” Upon review of the record, the
Court concludes that the Missouri Court of Appeals’ determination that appellate counsel did not
provide ineffective assistance by failing to pursue a challenge to the trial court’s denial of
Petitioner’s motion to sever or, in the alternative, motion to dismiss for improper joinder, was not
contrary to or an unreasonable application of clearly established federal law. Nor was the Court
of Appeals’ decision based on an unreasonable determination of the facts in the light of the

record. The Court denies Petitioner’s Ground Four.
B. Procedurally-defaulted claim
1. Ground Five – Ineffective assistance of trial counsel – double jeopardy
issue
In Ground Five, Petitioner argues his trial counsel provided ineffective assistance by failing
to seek dismissal before trial of the reindicted charges involving S.S., M.W., and H.S. in Cause
No. 1022-CR01505 on double jeopardy grounds because the new indictment came after the State
entered a nolle prosequi on those same charges in Cause No. 0722-CR09916 and after double
jeopardy had attached. Respondent asserts Petitioner’s fifth claim is procedurally barred or, in the
alternative, without merit.
Before seeking federal habeas relief under § 2254, a petitioner must exhaust his state-court
remedies. 28 U.S.C. § 2254 (b)(1)(A). To avoid procedural default, the petitioner must “fairly
present” the claim to the state court before seeking federal habeas relief. Morris v. Norris, 83 F.3d
268, 270 (8th Cir. 1996); Deck v. Jennings, 978 F.3d 578, 581 (8th Cir. 2020). “A claim has been
“fairly presented when a petitioner has properly raised the ‘same factual grounds and legal

theories’ in the state courts which he is attempting to raise in his federal habeas petition.” Wemark
v. Iowa, 322 F.3d 1018, 1021 (8th Cir. 2003) (internal citations omitted) (quoting Joubert v.
Hopkins, 75 F.3d 1232, 1240 (8th Cir. 1996)). “If a petitioner has not presented his habeas corpus
claim to the state court, the claim is generally defaulted.” Barrett v. Acevedo, 169 F.3d 1155, 1161
(8th Cir. 1999) (en banc).
A petitioner must present the claim to the state courts “in accordance with state procedural
rules.” Arnold v. Dormire, 675 F.3d 1082, 1086-87 (8th Cir. 2012) (internal quotation marks
omitted) (quoting Beaulieu v. Minnesota, 583 F.3d 570, 573 (8th Cir. 2009)). To satisfy the
exhaustion requirement, a state prisoner “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.” Grass v. Reitz, 643 F.3d 579, 584 (8th Cir. 2011) (quoting O’Sullivan v.
Boerckel, 526 U.S. 838, 845 (1999)).
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). Any claim that should have been but was not presented in a post-
conviction motion or in an appeal from a denial of a post-conviction motion is procedurally
defaulted. Interiano v. Dormire, 471 F.3d 854, 856 (8th Cir. 2006). This Court may not consider
the merits of a procedurally defaulted claim unless the petitioner shows either (1) cause and
prejudice or (2) that a miscarriage of justice will occur if the Court fails to consider the grounds
because the petitioner is actually innocent of the charge of which he was convicted. Sawyer v.
Whitley, 505 U.S. 333, 338-39 (1992); Thomas v. Payne, 960 F.3d 465, 471 (8th Cir. 2020).
Petitioner did not present to a Missouri court his ineffective assistance of trial counsel claim
now presented in his habeas petition as Ground Five. Petitioner acknowledges his failure to raise

this issue in the state court but asserts that he is entitled to develop and present this ground for
relief in his habeas petition under Martinez v. Ryan, 566 U.S. 1 (2012), because his post-conviction
counsel was ineffective by failing to present the claim of ineffective assistance of trial counsel in
his amended post-conviction motion.
Because there is no federal constitutional right to counsel in state post-conviction
proceedings, claims of ineffective assistance of post-conviction counsel are not cognizable as
independent claims in federal habeas corpus proceedings. see Coleman v. Thompson, 501 U.S.
722, 752 (1991); Hunton v. Sinclair, 732 F.3d 1124, 1126 (9th Cir. 2013); Jennings v. Groose, No.
4:94CV1349 CDP, 2015 WL 1475663, at *3 (E.D. Mo. Mar. 31, 2015). The Supreme Court has

recognized a narrow exception to the procedural default rule, when a petitioner “can establish
‘cause’ to excuse the procedural default and demonstrate that he suffered actual prejudice from the
alleged error.” Davila v. Davis, --- U.S. ---, 137 S. Ct. 2058, 2062 (2017). Under Martinez,
ineffective assistance of post-conviction counsel may constitute cause for a petitioner’s failure to
properly raise a claim of ineffective trial counsel in state court when the state’s collateral review
proceeding was the initial review proceeding for an ineffective assistance of counsel claim.
Martinez, 566 U.S. at 14.
Under this exception, the petitioner can overcome the procedural default of a claim if “(1)
post-conviction counsel performed deficiently; (2) ‘there was a reasonable probability that, absent
the deficient performance, the result of the post-conviction proceedings would have been
different’; and (3) the ‘underlying ineffective-assistance-of-trial-counsel claim is a substantial
one.’” Dickinson v. Shinn, 2 F.4th 851, 858 (9th Cir. 2021) (quoting Ramirez v. Ryan, 937 F.3d
1230, 1242 (9th Cir. 2019) (internal citations omitted), cert. granted sub nom. Shinn v. Ramirez,
No. 20-1009, ––– U.S. ––––, 141 S. Ct. 2620, 2021 WL 1951793 (U.S. May 17, 2021). To meet

this narrow exception for establishing cause, the petitioner must demonstrate that post-conviction
counsel was ineffective under the standards of Strickland. Martinez, 566 U.S. at 14; Deck, 978
F.3d at 582-84. In assessing post-conviction counsel’s performance, the Court must determine
whether the underlying ineffective assistance of trial counsel claim was “substantial” enough that
post-conviction’s counsel’s failure to raise the issue constituted ineffectiveness. Martinez, 566
U.S. at 14; Deck, 978 F.3d at 582. A claim is “substantial” when it has “some merit.” Martinez,
566 U.S. at 14.
Although Petitioner was acquitted on the counts involving M.W. and H.S., and his
convictions on the counts related to S.S. were vacated by the post-conviction court as violative of

Petitioner’s right to be free from double jeopardy pursuant to Mo. Rev. Stat. §56.087, Petitioner
now contends that his trial counsel was ineffective for failing to seek the dismissal of all the refiled
charges pursuant to Mo. Rev. Stat. §56.087 prior to his second trial. Petitioner asserts he was
prejudiced by being forced to defend himself against multiple charges involving multiple victims
when he only should have faced the charges involving J.T., and because the jury’s finding of guilt
as to the charges involving J.T. may have been influenced by the evidence related to the other
alleged victims.
Respondent argues the record demonstrates that post-conviction counsel performed
effectively, securing the reversal of two of Petitioner’s convictions. Respondent contends
Petitioner has failed to demonstrate that his post-conviction counsel was ineffective for choosing
not to challenge the charges involving M.W. and H.S.9 Respondent further contends Petitioner’s
claim is largely repetitive of his claims regarding joinder of the offenses and Petitioner has failed
to demonstrate that he was prejudiced by trial counsel’s failure to seek dismissal of the charges
related to S.S., M.W., and H.S.

In this case, there is no dispute that the State’s actions of entering a nolle prosequi on the
hung counts relating to S.S., M.W., and H.S. after Petitioner’s first trial and its subsequent refiling
of the charges, violated section 56.087 RSMo and entitled Petitioner to dismissal of those charges.
During the state post-conviction proceedings, post-conviction counsel raised this issue with respect
to the Petitioner’s convictions regarding S.S., the State conceded the point, and the motion court
agreed, vacating Petitioner’s convictions on Counts I and II. Arguably, trial counsel’s failure to
seek dismissal of all seven counts on this basis prior to Petitioner’s second trial constitutes deficient
representation. See Hinton v. Alabama, 571 U.S. 263, 274 (2014) (holding, with respect to defense
counsel’s mistaken belief about the law related to obtaining a crucial expert witness, that “[a]n

attorney’s ignorance on a point of law that is fundamental to his case combined with his failure to
perform basic research on that point is a quintessential example of unreasonable performance
under Strickland.”)
To establish cause and prejudice to excuse a procedural default, however, Petitioner must
demonstrate not only that the underlying ineffective assistance of trial counsel claim is substantial,

9 Respondent presents several alternative arguments in response to Petitioner’s claim. This includes arguments
contesting Petitioner’s ability to challenge, both in the state courts and in the current federal habeas proceeding, any
alleged constitutional violations resulting from his retrial on the charges related to S.S., M.W., and H.S. because
Petitioner was either acquitted on those charges or his convictions were subsequently vacated. Because the Court
views Petitioner’s claim that trial counsel’s failure to challenge his retrial on the charges involving S.S., M.W., and
H.S. violated his due process rights with regard to his trial on the charges involving J.T., as opposed to a direct
challenge to those charges on which he has no current conviction and is serving no sentence, this Court declines to
address Respondent’s arguments to that extent.
but also that post-conviction counsel was ineffective for failing to raise the claim in the post-
conviction proceeding. This includes demonstrating that post-conviction counsel performed
deficiently and that Petitioner was prejudiced by the deficient representation, in that the result of
the post-conviction proceeding would have been different absent post-conviction counsel’s
deficient performance. See Dickinson, 2 F.4th at 858.

Post-conviction counsel discovered trial counsel’s error and effectively raised the double
jeopardy issue with respect to those charges on which Petitioner was convicted, successfully
overturning two of Petitioner’s convictions. Post-conviction counsel also raised a claim that
appellate counsel was ineffective for failing to challenge the trial court’s denial of Petitioner’s
motion to sever the offenses or, in the alternative, motion to dismiss for improper joinder. This
claim directly addressed Petitioner’s argument that he was prejudiced by defending against the
charges simultaneously and that the collective evidence regarding all the charges unduly
prejudiced his defense on the individual charges. The fact that post-conviction counsel did not
raise an additional, more tenuous, claim is not deficient performance. As already noted,

“[d]eclining to raise a claim ... is not deficient performance unless that claim was plainly stronger
than those actually presented.” Deck, 978 F.3d at 584 (quotations omitted) (finding post-conviction
counsel’s reasonable selection of claims to raise is not deficient performance).
In addition, both the post-conviction court and the appellate court on review found
Petitioner failed to demonstrate substantial prejudice as a result of conducting the trials together.
The appellate court specifically rejected Petitioner’s claim that the evidence presented as to all
counts could have been used to bolster the evidence presented on each specific charge or that
evidence of Petitioner’s guilt as to one alleged victim could be used against him on the other
charges. In reaching this conclusion, the Missouri Court of Appeals found that the evidence of
each offense was distinct and uncomplicated, the jury was instructed that it must consider each
count separately, and that the jury’s acquittal on five of the charges demonstrated the jury’s ability
to distinguish the evidence and apply the law to each count. This Court concluded above that the
state appellate court’s decision was neither contrary to, nor an unreasonable application of, clearly
established federal law, and was not an unreasonable determination of the facts in light of the

evidence.
Moreover, the Court finds that the evidence of guilt was overwhelming as to the charges
involving J.T. The evidence presented at trial was that the assault on J.T. was particularly brutal,
causing her significant emotional and physical trauma as testified to by other witnesses, lending
credibility to J.T.’s testimony that the acts were not consensual. In light of the overwhelming
evidence of guilt, in conjunction with the state courts’ findings, Petitioner has failed to establish
that he was prejudiced by post-conviction counsel’s failure to raise this claim as to trial counsel’s
performance in the amended post-conviction motion.
Based on the foregoing, the Court finds Petitioner has failed to demonstrate that his post-

conviction counsel’s representation was either deficient or that he was prejudiced by counsel’s
alleged deficient representation. Because Petitioner has failed to establish that his post-conviction
counsel was ineffective, Petitioner’s Ground Five is procedurally barred.
IV. Evidentiary Hearing
Petitioner also requests an evidentiary hearing on his Grounds Four and Five to establish
(1) appellate counsel’s reasons for failing to raise the joinder and severance issues on appeal and
(2) cause under Martinez. The relevant statute, 28 U.S.C. § 2254(e)(2), bars an evidentiary hearing
unless a habeas petitioner was unable to develop the factual basis of his claim in state court despite
diligent effort or establishes statutory exceptions to that requirement. See Williams v. Taylor, 529
U.S. 420, 432 (2000) (a petitioner must show diligent effort for not developing his claim in state
court). The statutory exceptions do not apply here.
As to his fourth ground, Petitioner does not address the diligence requirement and simply
observes that the post-conviction court did not hold an evidentiary hearing on his ineffective-
assistance-of-appellate-counsel claim. On his fifth ground, which was not previously raised in a

state court proceeding, Petitioner asserts he will call trial counsel to testify regarding (1) counsel’s
failure to seek dismissal of the barred charges and (2) the prejudice to Petitioner by proceeding to
trial against the four alleged victims simultaneously. While such an inquiry might arguable assist
the underlying ineffective-assistance-of-trial-counsel claim, Petitioner has failed to identify in
what manner an evidentiary hearing would assist in the Court’s assessment of the ineffective-
assistance-of-post-conviction-counsel claim. Therefore, Petitioner has not demonstrated
entitlement to an evidentiary hearing under Section 2254(e)(2).
Even assuming the Court may consider the granting of an evidentiary hearing in this case,
the Court must take into consideration the AEDPA’s deferential standards that “control whether

to grant habeas relief.” Schriro v. Landrigan, 550 U.S. 465, 474 (2007). More specifically, “a
federal court must consider whether such a hearing could enable an applicant to prove the petition’s
factual allegations, which, if true, would entitle the applicant to federal habeas relief.” Id. at 474.
A habeas court need not hold an evidentiary hearing “if the record refutes the factual allegations[,]
otherwise precludes habeas relief,” or allows resolution of the issues by reference to the state court
record. Id.
The AEDPA requires the Court to limit its review of the merits of Petitioner’s ground for
relief to the record that was before the state court adjudicating the claim on its merits. See Cullen,
563 U.S. at 181-82. In addressing the merits of Petitioner’s ineffective-assistance-of-appellate-
counsel claim in Petitioner’s post-conviction appeal, the Missouri Court of Appeals had before it
the trial transcript and the record on appeal for Petitioner’s direct appeal, as well as the post-
conviction evidentiary hearing transcript and legal file for Petitioner’s post-conviction appeal. That
state court record is available to this Court as part of the record in this proceeding. Because the
state court record allows resolution of the merits of Petitioner’s Grounds Four and Five, the Court

denies Petitioner’s request for an evidentiary hearing.
V. Certificate of Appealability
A final order in a habeas proceeding in which the detention complained of arises out of
process issued by a state court cannot be appealed unless the judge issues a certificate of
appealability (“COA”). 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b)(1). A judge may issue a COA
under Section 2253(c) only if a petitioner has made “a substantial showing of the denial of a
constitutional right.” Tennard v. Dretke, 542 U.S. 274, 282 (2004); Miller-El v. Cockrell, 537
U.S. 322, 336 (2003). This standard requires a petitioner to demonstrate, with respect to claims
resolved on the merits, that “reasonable jurists would find the ... court’s assessment of the

constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000); accord
Miller-El, 537 U.S. at 338 (quoting Slack, 529 U.S. at 484).
The Court concludes that Petitioner has not made a substantial showing of the denial of
any constitutional right. Accordingly, the Court will not issue a certificate of appealability with
respect to any aspect of the denial of Petitioner’s petition.
VI. Conclusion
After careful consideration,
IT IS HEREBY ORDERED that Petitioner’s request for relief pursuant to 28 U.S.C. §
2254 [ECF No. 1] is DENIED.
IT IS FURTHER ORDERED that Petitioner’s request for an evidentiary hearing is
DENIED.
IT IS FINALLY ORDERED that any motion by Petitioner for a certificate of
appealability will be DENIED.
A separate judgment in accordance with this Memorandum and Order is entered this same date.

7 3 ? go
iden 2 bho
PATRICIA L. COHEN
UNITED STATES MAGISTRATE JUDGE

Dated this 15th day of October, 2021

38

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10651871. Public record. Not legal advice.