Lott v. Vandergriff

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

STEVE LOTT, )

)

Petitioner, )

)

vs. ) Case No. 4:23 CV 353 JMB

)

DAVID VANDERGRIFF, )

)

Respondent. )

MEMORANDUM AND ORDER

This matter is before the Court on Petitioner Steve Lott’s Petition for a writ of habeas

corpus pursuant to 28 U.S.C. § 2254 (Doc. 1). The parties have consented to the jurisdiction of

the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). For the reasons

set forth below, the Petition is DENIED.

I. Procedural Background

Petitioner is held by the Missouri Department of Corrections pursuant to the judgment and

sentence of the Cape Girardeau County Circuit Court. In August, 2016, after a bench trial, he was

convicted of murder in the second degree, armed criminal action, and unlawful possession of a

firearm and sentenced 30 years’, 10 years’, and 15 years’ imprisonment, respectively, to be served

consecutively (Doc. 14-9, pp. 4-5). On December 19, 2017, the Missouri Court of Appeals

affirmed his conviction and sentence (Doc. 14-9). Petitioner’s motion for postconviction relief

pursuant to Missouri Supreme Court Rule 29.15 was denied by the trial court and that decision

was affirmed on appeal to the Missouri Court of Appeals on May 24, 2022 (Doc. 14-17).

Petitioner filed his pro se § 2254 petition in this Court on March 30, 2023 (Doc. 1).

Petitioner retained counsel who filed an amended petition (Doc. 11), to which Respondent

responded (Doc. 14), and Petitioner replied (Doc. 19).

Petitioner asserts four grounds for relief: (1) that his due process rights were violated when

a witness, Corporal Steve Jarrell, was permitted to testify as an undisclosed expert; and (2) that he

received ineffective assistance of counsel for: (a) trial counsel’s failure to adduce favorable

testimony from an expert, Dr. Russell Deidiker; (b) trial counsel’s failure to introduce evidence, a

letter, that would undermine the state’s case; and, (c) appellate counsel’s failure to argue that he

was denied a speedy trial (Doc. 11, pp. 2-3).

II. Factual Background

In light of the grounds for relief raised by Petitioner, it is unnecessary to recount in full

detail the factual history of this matter. In sum, Petitioner was convicted of killing his wife in the

early morning hours of September 12, 2013. Petitioner argued at trial that his wife was shot while

he tried to wrestle a gun from her while she was suicidal. However, the state presented evidence

showing that the victim was shot in the back of her head at close range while sitting on a bed.

Additional facts will be set forth below as necessary.

III. Legal Standard

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. §

2254(d), allows for habeas relief in Federal court only if the state court’s determination:

(1) resulted in a decision that was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme Court

of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the

facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d)(1)-(2). A state court’s decision is “contrary to” clearly established law if “it

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

confronts a set of facts that is materially indistinguishable from a decision of [the Supreme Court]

but reaches a different result.” Brown v. Payton, 544 U.S. 133, 141 (2005). “The state court need

not cite or even be aware of the governing Supreme Court cases, ‘so long as neither the reasoning

nor the result of the state-court decision contradicts them.’” Brown v. Luebbers, 371 F.3d 458,

461 (8th Cir. 2004) (citing Early v. Packer, 537 U.S. 3, 8 (2002)). “In the ‘contrary to’ analysis of

the state court’s decision, [the federal court’s] focus is on the result and any reasoning that the

court may have given; the absence of reasoning is not a barrier to a denial of relief.” Id.

A decision involves an “unreasonable application” of clearly established law if “the state

court applies [the Supreme Court’s] precedents to the facts in an objectively unreasonable

manner,” Brown, 544 U.S. at 141; Williams v. Taylor, 529 U.S. 362, 405 (2000), or “if the state

court either unreasonably extends a legal principle from [Supreme Court] precedent to a new

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

where it should apply.” Id. at 406. “Federal habeas relief is warranted only when the refusal was

‘objectively unreasonable,’ not when it was merely erroneous or incorrect.” Carter v. Kemna, 255

F.3d 589, 592 (8th Cir. 2001) (quoting Williams, 529 U.S. at 410–11).

When reviewing whether a state court decision involves an “unreasonable determination

of the facts,” state court findings of “basic, primary, or historical facts” are presumed correct unless

the petitioner rebuts the presumption with clear and convincing evidence. Collier v. Norris, 485

F.3d 415, 423 (8th Cir. 2007) (citations omitted); 28 U.S.C. § 2254(e)(1). Erroneous findings of

fact by the state courts do not ensure the grant of habeas relief. Rather, the determination of these

facts must be unreasonable in light of the evidence of record. Id.

To prevail on his ineffective assistance of counsel claims, Petitioner must show that his

attorney’s performance fell below an objective standard of reasonableness and that he was

prejudiced thereby. Strickland v. Washington, 466 U.S. 668, 688 (1984). With respect to the first

Strickland prong, there is a strong presumption that counsel’s conduct falls within the wide range

of professionally reasonable assistance. Id. at 689. Thus, “counsel should be strongly presumed

to have rendered adequate assistance and made all significant decisions in the exercise of

reasonable professional judgment,” and the “burden to show that counsel’s performance was

deficient rests squarely on the defendant.” Burt v. Titlow, 571 U.S. 12, 22–23 (2013) (quotation

marks and citation omitted). Courts “must indulge a strong presumption that counsel’s conduct

falls within the wide range of reasonable professional assistance; that is, the defendant must

overcome the presumption that, under the circumstances, the challenged action ‘might be

considered sound trial strategy.’” Strickland, 466 U.S. at 689; see also Abernathy v. Hobbs, 748

F.3d 813, 816 (8th Cir. 2014) (reviewing court must refrain “from engaging in hindsight or second-

guessing of trial counsel’s strategic decisions.”) (citation omitted)).

To establish the “prejudice” prong, the movant must show “that there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding would have

been different.” Strickland, 466 U.S. at 694. “Merely showing a conceivable effect is not enough;

a reasonable probability is one sufficient to undermine confidence in the outcome.” Paulson v.

Newton Corr. Facility, 773 F.3d 901, 904 (8th Cir. 2014) (citation omitted). Although Strickland

requires a showing of both deficient performance and prejudice, a “finding that no prejudice exists

is sufficient to conclude that counsel was not constitutionally ineffective — [courts] need not first

make a determination regarding deficiency.” Holder v. United States, 721 F.3d 979, 987 (8th Cir.

2013).

“Taken together, AEDPA and Strickland establish a ‘doubly deferential standard’ of

review.” Williams v. Roper, 695 F.3d 825, 831 (8th Cir. 2012) (quoting Cullen v. Pinholster, 563

U.S. 170, 202 (2011)).

First, under Strickland, the state court must make a predictive judgment

about the effect of the alleged deficiencies of counsel on the outcome of the trial,

focusing on whether it is “reasonably likely” that the result would have been

different absent the errors. Strickland, 466 U.S. at 696. . . . To satisfy Strickland,

the likelihood of a different result must be “substantial, not just conceivable.” Id.

Under AEDPA, [federal courts] must then give substantial deference to the state

court’s predictive judgment. So long as the state court’s decision was not “contrary

to” clearly established law, the remaining question under the “unreasonable

application” clause of § 2254(d) is whether the state court’s determination under

the Strickland standard is unreasonable, not merely whether it is incorrect.

[Harrington v. Richter, 562 U.S. 86, 112, 101], 131 S. Ct. 770, 792, 785 (2011).

This standard was meant to be difficult to meet, and “even a strong case for relief

does not mean the state court’s contrary conclusion was unreasonable.” Id. at [102].

Williams, 695 F.3d at 831–32; see also Springs v. Payne, 95 F.4th 596, 601-602 (8th Cir. 2024).

“When § 2254(d) applies, the question is not whether counsel’s actions were reasonable. The

question is whether there is any reasonable argument that counsel satisfied Strickland’s deferential

standard.” Harrington, 562 U.S. at 105. Furthermore, a state court’s findings of fact made in the

course of deciding a claim of ineffective assistance of counsel are presumed to be correct. Odem

v. Hopkins, 382 F.3d 846, 849 (8th Cir. 2004).

IV. Discussion

A. Due Process

Petitioner first asserts that his due process rights were violated when the trial court

permitted Corporal Jarrell to give opinion testimony based on his observations of the blood splatter

at the crime scene. 1 In particular, Corporal Jarrell testified that the blood splatter was inconsistent

with a victim who was standing, which was contrary to Petitioner’s version of events. Petitioner

broadly raised this claim on direct appeal, citing to state law (Doc. 14-6). In considering the claim,

the Missouri Court of Appeals found that Corporal Jarrell did not testify as an expert; rather, he

1 While not argued by Respondent, the Court would find this claim was procedurally defaulted because Petitioner’s

broad claim of a due process violation before the state court is insufficient to preserve a constitutional challenge before

this Court. See Gray v. Netherland, 518 U.S. 152, 163 (1996) (“We have also indicated that it is not enough to make

a general appeal to a constitutional guarantee as broad as due process to present the ‘substance’ of such a claim to a

state court.”). In his brief before the state court (Doc. 14-6), Petitioner refers to the Sixth and Fourteenth Amendments

to the United States Constitution. However, his argument relied wholly on state evidentiary law without a single

reference to either a Supreme Court case or any federal case, statute, or other authority. Unsurprisingly, the state court

analyzed his claim based on state law.

testified based on his personal observations and experience as a police officer, which he is

permitted to do pursuant to state law (Doc. 14-9, p. 12, citing State v. Woodson, 140 S.W.3d 621

(Mo. Ct. App. 2004) and State v. Battle, 415 S.W.3d 783 (Mo. Ct. App. 2013)). The court

necessarily concluded that admission of the evidence did not deprive Petitioner of a fair trial.

While Petitioner raised this claim on direct appeal, it does not entitle him to federal habeas

relief. First, this Court cannot re-evaluate the state court’s interpretation of state law. Schleeper

v. Groose, 36 F.3d 735, 737 (8th Cir. 1994) (“Federal courts are limited to deciding whether a state

conviction violated the federal Constitution or laws” and this court “may not re-examine a states

court’s interpretation and application of state law.”). The state court found that Corporal Jarrell’s

testimony was not expert testimony and that the trial court did not err in admitting it over

Petitioner’s objection that it was undisclosed expert witness testimony. Therefore, Petitioner’s

argument before this Court, that he was deprived the opportunity to provide rebuttal expert

testimony, is merely an argument that the state court erred in applying state law.

Second, and more importantly, in order for Petitioner to prevail on this due process claim,

he must show that the admitted evidence resulted in a fundamentally unfair trial – that the

admission was “so gross, conspicuously prejudicial, or otherwise of such magnitude that it fatally

infect[ed] the trial.” McCafferty v. Leapley, 944 F.2d 445, 452 (8th Cir 1991). Petitioner must

show that a specific constitutional right was violated by the admission of the evidence or that the

admission of the same “rendered his entire trial fundamentally unfair.” Sittner v. Bowersox, 969

F.3d 846, 849-850 (8th Cir. 2020) (quotation marks and citation omitted). Petitioner makes no

such showing.

Instead, Petitioner broadly argues that the circumstances of Corporal Jarrell’s testimony

prevented him from presenting a “complete defense” and denied him a “fair opportunity to defend

against the allegations of the state” (Doc. 19, p. 16). Such broad arguments are insufficient.

Petitioner cites no case authority that would provide for the due process relief he requests, nor does

he offer any argument that his entire criminal trial was fundamentally unfair. Petitioner has made

no showing that “there is a reasonable probability that the error complained of affected the outcome

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

different.” Hamilton v. Nix, 809 F.2d 463, 470 (8th Cir. 1987). Petitioner asserts that the blood

splatter evidence directly contradicted his assertion that the victim was shot by accident while

standing and struggling to commit suicide – implying that it was the only evidence supporting the

conviction. As set forth by the state court, however, the evidence revealed that Petitioner and the

victim argued before the shooting (and for some time prior to the shooting); the victim was shot

by a gun that was two inches from the back of her head in a level trajectory; the coroner determined

that the shooting was a homicide; Petitioner fled from the scene; and, Petitioner could not initially

explain how the victim was shot. In the context of this evidence this Court cannot conclude that

he was deprived a fair trial by the admission of Officer Jarrell’s testimony. There is simply no

showing that the state court’s conclusion that Officer Jarrell did not provide expert testimony and

the admission of the same is either contrary to or an unreasonable application of federal law or an

unreasonable determination in light of the facts. As such, the decision is entitled to deference. 28

U.S.C. § 2254(d)(1), (2); Williams v. Taylor, 529 U.S. 362, 379 (2000).

B. Ineffective Assistance of Counsel

Petitioner next argues that he received ineffective assistance of counsel for: (a) trial

counsel’s failure to adduce favorable testimony from an expert, Dr. Russell Deidiker; (b) trial

counsel’s failure to introduce evidence, a letter, that would undermine the state’s case; and, (c)

appellate counsel’s failure to argue that he was denied a speedy trial (Doc. 11, pp. 2-3). Petitioner

has not explained or discussed how the Missouri Court of Appeals either unreasonably applied the

law or unreasonably determined the facts in light of the evidence. As such, Petitioner cannot

satisfy the “doubly deferential” standard required to obtain habeas relief on the grounds raised in

his petition. To the contrary, the state courts correctly identified the controlling legal standard for

Petitioner’s ineffective assistance of counsel claims. Burt v. Titlow, 571 U.S. 12, 22-23 (2013)

(noting that the burden is on a petitioner to show that counsel’s performance was deficient).

Dr. Deidiker testified at trial as the forensic pathologist who performed the autopsy on the

victim (Doc. 14-1, pp. 334-335). Based on his examination, he determined that: the cause of death

was a gunshot to the head in the manner of a homicide (Id. 350-351); that the bullet entered at the

back of the victim’s head on a level path (Id. 337, 351); the barrel of the gun was less than two

inches from her head (Id. 345); and, that the injury was instantly incapacitating (Id. 345). On

cross-examination, Dr. Deidiker testified that other superficial wounds on the victim’s head and

jaw line could have been caused if she had fallen from a standing position between the bed and

wall (Id. 354).

In his post-conviction motion before the state courts, Petitioner argued that trial counsel

was ineffective for failing to acquire testimony from Dr. Deidiker that the victim would have been

standing when she was shot; thereby supporting Petitioner’s theory of the case.

At an evidentiary hearing on Petitioner’s post-conviction motion (Doc. 14-12), Dr.

Deidiker testified that photographs of the crime scene could show blood transfer stains on the walls

that are possibly consistent with a standing victim (Id. 12). Upon questioning by the trial judge,

Dr. Deidiker testified that the space between the wall (where some of the blood stains were found)

and the bed was about or less than 18 inches (Id. 14). He further indicated that none of the blood

stains were more than waist high (Id.). There also was “a lot of blood on the bed” suggesting that

the victim was laying on the bed while bleeding (Id.). However, the victim could have been

positioned on the bed after being shot (Id. 17).

In considering this claim, the Missouri Court of Appeals (Doc. 14-18), recounted the

evidence: that Corporal Jarrell testified the amount of blood on the bed “suggested that it was the

primary area that bloodletting occurred” and that if the victim was standing there would have been

blood on the wall higher than 44 inches; that another witness, Sergeant Scott Rawson agreed with

Corporal Jarrell’s assessment and that the shooting occurred below that 44 inch level; that Dr.

Deidiker testified that the cause of death was a close contact and level gunshot to the back of the

head that was likely not self-inflicted (Id. 4-5). The Court went on to note Petitioner’s testimony,

that the victim was suicidal, that she was holding the gun close to her head, that he approached the

victim from behind, that they struggled between the bed and the wall and she was shot in the back

of the head which caused her to fall on the bed rail (Id. 5). Petitioner also testified inconsistently:

he initially stated he tried to lift the victim’s body to the bed but could not and then testified that

he did place her body on the bed before returning it to the floor (Id.).

In addressing the argument, the Court first found that trial counsel did elicit testimony from

Dr. Deidiker that the victim may have been standing while shot. The Court stated that while trial

counsel “did not specifically ask whether the victim was standing when she was shot, the desired

testimony was effectively yielded” (Id. 6). As noted above, Dr. Deidiker testified that the abrasions

on the victim could have been the result of falling from a standing position when the gun was

discharged (Id. 6). The state court next found that there was no prejudice to Petitioner because Dr.

Deidiker’s testimony at the post-conviction hearing was equivocal at best as to whether the victim

could have been standing and would not have overcome the testimony of Corporal Jarrell, Sergeant

Rawson, and the physical evidence. Thus, the Court found that Petitioner failed to demonstrate a

reasonable probability that the additional testimony would have altered the outcome of the trial.

Before this Court, Petitioner does not address how the state court erred in its conclusions

or why it is not entitled to deference. Gray v. Norman, 739 F.3d 1113, 1117 (8th Cir. 2014). He

offers no argument that would contradict the finding that trial counsel did, in fact, elicit some

testimony from Dr. Deidiker that the victim could have been standing at the time of the shooting.

Harrington, 562 U.S. 101. As such, Petitioner has not demonstrated that counsel’s performance

was deficient. See Dorsey v. Vandergriff, 30 F.4th 752, 757 (8th Cir. 2022) (stating that a

petitioner must demonstrate that counsel’s conduct amounted to incompetence). Moreover, there

is no showing that the state court erred in finding no prejudice. As the state court found, there was

significant evidence that the victim was sitting when shot and that it was unlikely that she shot

herself in an attempted suicide – evidence that would not be overcome with Dr. Deidiker’s

potential equivocal testimony.

Petitioner’s third ground for relief, which also presents an ineffectiveness claim as to an

evidentiary issue at trial, is equally unavailing. In this claim, Petitioner asserts that trial counsel

was ineffective for failing to introduce a letter that he wrote to his former counsel, Ella Conley. In

the September, 2013 letter, he described the events on the night of the shooting. The description

is consistent with his testimony at trial, that the victim was suicidal and was shot while he was

attempting to retrieve a gun from her (Doc. 14-12, p. 53, 57-58). Counsel Conley asked for the

letter to begin investigating the case and while the information was “fresh” in Petitioner’s mind

(Id. 51).2 One of Petitioner’s trial counsel indicated that the letter would have contradicted the

state’s attempt to undermine Petitioner’s credibility by arguing that his testimony at trial merely

conformed to the evidence (Id. 76). He further indicated that the letter would have been admissible

as a prior consistent statement but that it was not introduced (Id.). However, trial counsel also

noted that Petitioner’s case was tried to a judge and that the judge would not have given much

weight to the prosecutor’s argument (Id. 87).

2 However, counsel Conley testified that she would not have introduced the letter at trial (if she had remained on the

case), even with Petitioner’s consent because it would have been deemed “self-serving hearsay” (Id. 53-54).

Lead counsel in Petitioner’s trial, Cynthia Dryden, testified that she could have introduced

the letter to show Petitioner’s consistent statements but she did not (Doc. 14-13, p. 208). When

asked why, she stated:

There’s a couple of reasons. Number one, in a bench trial, I don’t think it’s

necessary. The – I mean, its not a jury and the judge already knows the client has

had all of these statements ahead of time and all of these police reports. So, its not

some fabrication that he’s made, just because he’s heard witness testimony.

And frankly, number two, why I didn’t use it is the letter was more

damaging than helpful.

* * *

If you look at the front of the letter, we had been able to keep out all of the

information about prior fights. All of the information about her calling the police

on Mr. Lott before, her going to her family and telling the family about fights, I

believe unfairly and not true, that Mr. Lott had attacked her, in the past.

She had some mental health issues and that came out. But all of the past

history of all of the previous fights didn’t. And so the history doesn’t come out,

until that letter. And that letter would have opened the door and I didn’t think it was

worth it, for that.

(Id. 208-209). Counsel clarified that if there was a jury trial, she may have introduced the letter

(Id. 209-210).

In addressing this claim, the Missouri Court of Appeals accurately summarized the above

testimony and acknowledged that a prior consistent statement could be used to rehabilitate a

witness whose credibility is attacked (Doc. 14-18, pp. 7-8). However, the court went on to find

that there was a presumption that trial counsel employed sound trial strategy in declining to

introduce the letter (Id. 8). In outlining that strategy, the court noted that counsel did not want to

introduce evidence of prior instances of violence between Petitioner and the victim and that the

trial court had already reviewed the police report and trial testimony and would not have given

weight to the letter or to the prosecution’s attempt to discredit Petitioner’s testimony based on his

knowledge of the evidence (Id. 8-9). Finally, the court found that Petitioner had not overcome the

presumption.

Again, Petitioner makes no argument that the Missouri Court of Appeals erred in its

assessment. Counsel’s “strategic decisions . . . are entitled to a ‘strong presumption’ of

reasonableness.” Dunn v. Reeves, 594 U.S. 731, 739 (2021); Strickland, 466 U.S. at 689. In order

to prevail on this claim, then, Petitioner must show that counsel’s conduct fell below a standard of

“reasonableness under prevailing professional norms.” Strickland, 466 U.S. at 688. Petitioner

makes no such showing. It is reasonable for an attorney to decline to introduce a letter that would

cause more harm than good. In this case, counsel decided that a letter that included undisclosed

instances of violence between Petitioner and the victim, that would open-up Petitioner to cross-

examination on that violence, outweighed any benefit the letter may have had in bolstering his

credibility, especially in a bench trial. Such a decision appears reasonable; it was also reasonable

for the state courts to find as much; and, Petitioner has offered no argument or case authority

demonstrating the unreasonableness of this trial strategy.

Finally, Petitioner asserts that appellate counsel was ineffective for failing to raise a speedy

trial issue on direct appeal. Petitioner asserts that three years elapsed between his arrest and trial

(a presumptively prejudicial amount of time) and that he filed a motion for or requested a speedy

trial in May 2014, June 2014, and immediately prior to trial in August 2016. He claims he was

prejudiced by the delay because two witnesses died in the interim: a neighbor (Ruth Mitchell) who

would testify that Petitioner told her “that a bad accident had just happened and that he called the

police” just after the shooting; and, his father (Leroy Lott) who would testify as to conversations

regarding the victim’s mental status. He further asserts that the state used the delay to discredit

his testimony by implying that Petitioner used the delay to “craft a story” contrary to the state’s

theory. Finally, he argues that appellate counsel was aware of this argument and that the failure

to raise the issue was not sound strategy.

In addressing this claim, the state court found that counsel was not ineffective for failing

to raise an unmeritorious claim even though she gave no particular reason for failing to raise the

claim on appeal (Doc. 14-18, pp. 10-11). In particular, the court found that Petitioner was

originally indicted on November 18, 2013, that a motion for a speedy trial was filed on June 5,

2014, and that the case was dismissed on March 25, 2015 after a new indictment was filed the

previous day (Id. 11). A new motion to dismiss based on the right to a speedy trial was filed on

June 2, 2015 (as to the dismissed case); that motion was denied as moot by the trial court because

the case had been dismissed. As to the refiled case, Petitioner did not file any motion for a speedy

trial; instead, on the first day of trial, he orally moved for dismissal. The court found that Petitioner

had failed to raise a speedy trial issue, supported by argument, in the case that was tried; that there

was no evidence that delay attributed to the state resulted in a violation of Petitioner’s rights; that

there was any actual prejudice to Petitioner; or that such an argument would have been

meritorious.3 The court concluded, then, that counsel was not ineffective for failing to raise an

unmeritorious claim because there was no prejudice (Id. 14). Again, Petitioner does not directly

address how the state courts erred in considering this claim.

The Sixth Amendment guarantees “the right to a speedy and public trial.” The clock begins

to run at the time a defendant is arrested or indicted and continues until trial. United States v.

Marion, 404 U.S. 307, 325 (1971); United States v. Johnson, 990 F.3d 661, 670 (8th Cir. 2021).

In addressing whether a Sixth Amendment right to a speedy trial is violated, courts must weigh

four factors: “the length of the delay, the reason for the delay, the defendant’s assertion of his right,

and prejudice to the defendant.” United States v. Jackson, 446 F.3d 847, 849 (8th Cir. 2006). The

3 The trial court found that no motion for a speedy trial was filed in the case that was eventually tried and that appellate

counsel was not ineffective to failing to raise the issue (Doc. 14-13, pp. 251-252).

state court correctly identified this standard (Doc. 14-18, p. 11, citing Barker v. Wingo, 407 U.S.

514, 530 (1972)). The state court found that even if the length of delay was excessive, there was

no evidence that the length of delay was other than at the Petitioner’s request, that the Petitioner

did not assert his right in a meaningful manner, and that, in any event, there was no prejudice. In

its analysis, the state court followed the analysis of Barker.

Like the Missouri courts assumed, even if the length of delay is prejudicial,4 Petitioner has

made no showing that the reason for delay is attributable to the state. Petitioner states in his brief

that: “Aside from petitioner’s counsel moving to withdrawal [sic] on June 17, 2015, none of the

delays in the case can be attributed to petitioner” (Doc. 11, p. 27). However, Petitioner cites to no

part of the record that would support this contention. As pointed out by the state court, his attorney

Hoskins testified that a year and a half delay was attributable to conversion of this criminal case

to a death penalty case – that caused the defense to “start over with the representation” (Doc. 14-

12, p. 78, 83-84). At least this delay, certainly and understandably, is attributable to the defense.

Moreover, there is no argument that the state intentionally delayed the case. United States v.

Summage, 575 F.3d 864, 876 (8th Cir. 2009).

Petitioner likewise does not address the state court’s finding that he did not meaningfully

assert his speedy trial rights in the correct case. As set forth above, no formal motion for a speedy

trial was filed in the case that was tried (it was filed in the case that was dismissed) and Petitioner

only made an oral motion for a speedy trial. As to this oral motion, the state court found that

“because this was the only mention of his right to a speedy trial in the new case, it would have

been difficult for Lott to prove a violation” (Doc. 14-18, p. 13).

4 See United States v. Jeanetta, 533 F.3d 651, 656 (8th Cir. 2008) (stating that a delay approaching one-year may meet

the threshold requirement of Barker).

Finally, the state court found there was no actual prejudice. Before the state appellate court,

Petitioner asserted that he was prejudiced by spending “dead time” in jail, it allowed the state to

re-indict him to a higher degree of murder, and witnesses, including Mitchell and Leroy Lott

passed away prior to trial (Doc. 14-15, p. 47). The state appellate court rejected the first two

arguments because there was no showing of actual prejudice and rejected the third argument

because he failed to raise the claim in an amended petition before the trial court (Doc. 14-18, p.

14).5 Petitioner does not explain how the state courts erred in their assessment. In addressing

prejudice, there are three considerations: “(i) to prevent oppressive pretrial incarceration; (ii) to

minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will

be impaired.” Barker, 407 U.S. 514, 532 (1972). Petitioner does not elaborate on the first two

factors nor has he pointed to any evidence that show oppressive pretrial conditions or any

significant anxiety or concern. As to the witnesses who died prior to trial, Petitioner has made no

argument that this Court should consider an argument that was waived before the state courts. It

is also unclear how their vaguely corroborative testimony would have overcome the other

overwhelming evidence of guilt. See, e.g., Summage, 575 F.3d 876 (stating that listing witnesses

who can offer some evidence to corroborate defenses theory is insufficient). In sum, Petitioner

has made no suggestion that the state courts erred in “engag[ing] in the difficult and sensitive

balancing process” in addressing Petitioner’s speedy trial claim nor has he shown prejudice as a

result of counsel’s failure to raise a speedy trial claim on direct appeal. Barker, 407 U.S. at 533;

Taylor v. Roper, 561 F.3d 859, 863 (8th Cir. 2009) (noting that because the Barker standard is

“general,” the state courts have latitude to determine whether the defendant has met his burden).

5 Petitioner’s amended petition before the state trial court makes no mention of deceased witnesses (Doc.

14-13, p. 177). While not argued by Respondent, a petitioner must “fairly present” his claims before the

state courts to preserve review by the federal courts. Baldwin v. Reese, 541 U.S. 27 (2004).

* * * * *

For the foregoing reasons,

IT IS HEREBY ORDERED that the Petition of Steve Lott for a writ of habeas corpus

pursuant to 28 U.S.C. § 2254 (Docs. 1, 11) is DENIED.

IT IS FURTHER ORDERED that no certificate of appealability will be issued because

Petitioner has not made a substantial showing of the denial of a constitutional right. See 28 U.S.C.

§ 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 335-338 (2003) (setting forth the standard for

issuing a certificate of appealability).

A separate Judgment will accompany this Memorandum and Order.

/s/ John M. Bodenhausen

JOHN M. BODENHAUSEN

UNITED STATES MAGISTRATE JUDGE

Dated this 2nd day of July, 2024.