# Clark v. Falkenrath

> District Court, E.D. Missouri · July 26, 2024

URL: https://www.frixlaw.com/law-library/cases/10651980

## Case

- **Court:** District Court, E.D. Missouri
- **Decided:** July 26, 2024
- **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/10651980

## How later opinions describe it (automated extraction)

- finding that “AEDPA’s limitations period was not tolled in [petitioner]’s case during the 116 days between November 7, 2005, and March 3, 2006” even though only 115 days fall between those two dates, meaning the court included the last day in the calculation
- applying the “four[-]part test enunciated by the Supreme Court in Barker” (citing Barker, 407 U.S. 514)

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

VANCE ROY CLARK, )
)
Petitioner, )
)
v. ) Case No. 4:23-cv-01284-SRC
)
SUPERINTENDENT DORIS )
FALKENRATH, )
)
Respondent. )

Memorandum and Order
After being convicted of drug possession and distribution, Vance Roy Clark appealed his
conviction, moved for post-conviction relief, and filed multiple state habeas petitions. The state
courts denied all of his motions. Now, he brings a petition for writ of habeas corpus under
28 U.S.C. § 2254, re-raising numerous claims he presented to the state courts. Because the
Missouri courts’ denials of these same claims were not contrary to, or an unreasonable
interpretation of, clearly established federal law, the Court denies Clark’s petition.
I. Background
A. State proceedings
“In a proceeding instituted by an application for a writ of habeas corpus by a person in
custody pursuant to the judgment of a State court,” the Court presumes the correctness of “a
determination of a factual issue made by a State court.” 28 U.S.C. § 2254(e)(1). A petitioner
bears the “burden of rebutting the presumption of correctness by clear and convincing evidence.”
Id. The Missouri Court of Appeals described the relevant facts as follows:
The State charged [Clark], as a persistent offender, with three counts of
distribution of heroin (Counts I-III), one count of possession of methamphetamine
(Count IV), one count of possession of oxycodone (Count V), and one count of
possession of drug paraphernalia (Count VI). Viewed in the light most favorable
to the verdict, the evidence at trial showed the following.
On February 13, 2015, troopers with the Missouri State Highway Patrol set
up a controlled buy with a confidential informant, Mark Canterbury (Canterbury).
Canterbury told the troopers he regularly purchased heroin from [Clark] and had
arranged to buy one gram from [Clark] for $200. The troopers drove to
Canterbury’s mother’s house, searched Canterbury, and provided Canterbury with
a recording device and money to purchase heroin from [Clark] and another seller.
[Clark] arrived driving a white Cadillac with two other people in the car.
Canterbury got into the car and purchased some heroin from a woman in the car
and .97 grams of heroin from [Clark].
On February 17, 2015, Canterbury set up another buy with [Clark].
Troopers picked up Canterbury, searched him, gave him a recording device and
money for the buy, and drove him to [Clark]’s house at 3416 Hildebrecht Road.
Canterbury went into [Clark]’s house and purchased 0.54 grams of heroin for $200.
On February 18, 2015, Canterbury set up a meeting with [Clark] to purchase
15 grams of heroin for $1,800. Troopers again picked up Canterbury, searched
him, and drove him to [Clark]’s residence. The troopers outfitted Canterbury with
a recording device and provided the money for the transaction. Canterbury
purchased approximately 14 grams of heroin from [Clark] for $1,710.
That day, troopers executed a search warrant at [Clark]’s residence at 3416
Hildebrecht Road. The troopers knocked and announced their presence. [Clark]
yelled, “I’m here” but refused to open the door. The troopers broke down the door
and found [Clark] lying on the floor of the master bedroom. The troopers searched
[Clark], finding a $10 bill in his pocket with serial numbers matching one of the
bills the troopers had given Canterbury to make the controlled buy earlier that day.
During a search of the house, troopers recovered digital scales in the living
room; the bottom of a soda can used for heating heroin for injection; a used syringe
on top of a bag of syringes and a spoon with heroin residue in a drawer in the master
bedroom; a baggie containing methamphetamine and oxycodone pills behind the
bathroom vanity; and a glass smoking device in the bathroom.
The jury found [Clark] guilty on all counts. The court sentenced [Clark] to
30 years’ imprisonment each on Counts I and II, 15 years’ imprisonment each on
Counts III through V, and one year in jail on Count VI. The court ordered the
sentences for Counts I and II to run consecutively to each other but concurrent to
the remaining sentences.
Doc. 15-10 at 2–3.1 Sentencing occurred on January 13, 2017. Doc. 15-3 at 16.
After, Clark filed numerous post-conviction motions. Because Superintendent Doris
Falkenrath raises timeliness as an issue, the Court provides relevant dates pertaining to these
numerous motions. First, on February 27, 2017, Clark filed a belated Notice of Appeal, which

1 The Court cites to page numbers as assigned by CM/ECF.
the Court of Appeals accepted. State v. Clark, No. ED105347 (Mo. Ct. App.). In his appeal,
Clark alleged five errors. Doc. 1-7 at 23–24; see Clark, No. ED105347. About a year later, the
Missouri Court of Appeals affirmed the trial-court decision, addressing and denying each of
Clark’s five points. Docs. 15-9, 15-10. Clark then moved for rehearing/transfer to the Missouri

Supreme Court twice. Clark, No. ED105347. The court denied both motions. Id.
After this, Clark filed “Missouri Criminal Procedure Form No. 40” for post-conviction
relief. Doc. 1 at 3; doc. 15-13 at 50–101; see Clark v. State, No. 18SF-CC00110 (Mo. Ct. App.).
And then, Clark filed an amended motion. Clark, No. 18SF-CC00110; doc. 15-13 at 112–49. In
it, he raised six claims of ineffective assistance of trial counsel. Doc. 1-10 at 30; see also doc.
15-13 at 122–47. About two years later, the court denied Clark’s motion. Clark, No. 18SF-
CC00110. And soon after, Clark appealed the denial. Clark v. State, No. ED109130 (Mo. Ct.
App.). After about another year, the appellate court affirmed the denial. Id. Then on November
29, 2021, the court issued its mandate, and Clark immediately moved to recall the mandate. Id.
Two months later, the court denied this motion as well. Id.

During this time, Clark also brought a state habeas petition. Clark v. Ramey, No. 21AC-
CC00149 (Cole Cir. Ct.). The court denied his petition, and then Clark appealed the denial. Id.;
Clark v. Falkenrath, WD84860 (Mo. Ct. App.). In his appeal, Clark raised six points.
Doc. 1-9 at 10–13; see Clark, No. WD84860. Soon after, the court denied Clark’s petition. See
Clark, No. WD84860.
In 2022, Clark filed a second writ-of-habeas-corpus petition in state court. Clark v.
Falkenrath, No. 22AC-CC00090 (Cole Cir. Ct.). And like his previous filing, the court denied
his petition, id., and the appellate court affirmed the denial, Clark v. Falkenrath, No. WD85478
(Mo. Ct. App.). The appellate court issued its mandate on January 11, 2023. Id.
Six months later, Clark filed a writ of habeas corpus in the Missouri Supreme Court,
raising two points. Doc. 1-12 at 11–17; see Clark v. Falkenrath, No. SC100155 (Mo.). The
Supreme Court denied his petition shortly thereafter. Clark, No. SC100155.
B. Federal proceeding

On September 18, 2023, Clark placed in the prison mailing system a federal writ-of-
habeas-corpus petition. Doc. 1 at 17. In it, he raises five grounds for relief by incorporating
several points previously raised in his various state filings: (1) “POINTS I–VI are incorporated
herein by reference as if fully set forth herein from BRIEF FOR APPELLANT filed in Appeal
No. ED105347 (Attachment G),” id. at 5; see also doc. 1-7 at 23–24; (2) “POINTS VII–XII are
incorporated herein by reference as if fully set forth herein from his Writ of Habeas Corpus filed
in No. WD84860 (as POINTS I–VI therein). Attachment I,” doc. 1 at 7; see also doc. 1-9 at 10–
13; (3) “POINTS XIII–XIV are incorporated herein by reference as if fully set forth herein from
Writ of Habeas Corpus No. SC100155 (as POINTS I–II therein). Attachment L,” doc. 1 at 8; see
also doc. 1-12 at 11–17; (4) “POINTS XV–XX are incorporated herein by reference as if fully

set forth herein from the Rule 29.15 Amended Motion filed in Case No. 18SF-CC00110 on
October 22, 2018,” doc. 1 at 10; see also doc. 1-10 at 30; and (5) “POINT XXI VIOLATION OF
DUE PROCESS,” doc. 1 at 12. The Court includes the full text of each incorporated claim in
Appendix A.
Although Clark claims to raise 21 points, the referenced filings contain only 20.
Compare doc. 1 at 5 (asserting doc. 1-7 contains six points) with doc. 1-7 at 23–24 (containing
only five points). For ground one, he complains of five alleged trial-court errors. See doc. 1-7 at
23–24. For grounds two and four, he raises numerous ineffective-assistance-of-counsel claims.
See doc. 1-9 at 10–13; doc. 1-10 at 30; see also doc. 15-13 at 122–47. For ground three, he
alleges two more Missouri-court errors. See doc. 1-12 at 11–17. And for ground five, he brings
a due-process claim. Doc. 1 at 12.
II. Standard
A state prisoner who seeks relief under 28 U.S.C. § 2254 must prove that he is “in

custody in violation of the Constitution or laws or treaties of the United States.” To obtain relief
under section 2254, a petitioner must establish that the state-court proceedings:
(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). To warrant relief, a state court’s decision must be “more than incorrect or
erroneous”; it “must be objectively unreasonable.” Lockyer v. Andrade, 538 U.S. 63, 75 (2003).
A petitioner must also show that equitable considerations favor relief. “[E]ven a petitioner who
prevails under [the Antiterrorism and Effective Death Penalty Act] must still today persuade a
federal habeas court that ‘law and justice require’ relief.” Brown v. Davenport, 596 U.S. 118,
134 (2022) (citations omitted); see also 28 U.S.C. § 2243 (“A court, justice, or judge entertaining
an application for a writ of habeas corpus . . . shall summarily hear and determine the facts, and
dispose of the matter as law and justice require.”). Historically, “the States’ ‘powerful and
legitimate interest in punishing the guilty’” stands as the most important of these equitable
considerations. Brown, 596 U.S. at 132 (quoting Calderon v. Thompson, 523 U.S. 538, 556
(1998)).
III. Discussion
Falkenrath objects to Clark’s petition on three general grounds. First, Falkenrath argues
that Clark failed to timely file his petition. Second, Falkenrath argues that Clark failed to file a
properly formatted petition. Third, Falkenrath analyzes each claim and argues that none
warrants relief. The Court addresses the arguments below.
A. Timeliness
First, Falkenrath argues that the Court should dismiss Clark’s petition as untimely.

Doc. 15 at 7–10. Having reviewed the record, the Court disagrees.
When filing a habeas petition, a prisoner must file within one year from “the judgment of
a State court.” 28 U.S.C. § 2244(d)(1). But the time may be tolled: “[t]he time during which a
properly filed application for State post-conviction or other collateral review with respect to the
pertinent judgment or claim is pending shall not be counted toward any period of limitation
under this subsection.” Id. at § 2244(d)(2). “[A]n application is pending as long as the ordinary
state collateral review process is ‘in continuance’—i.e., ‘until the completion of’ that process. In
other words, until the application has achieved final resolution through the State’s post-
conviction procedures, by definition it remains ‘pending.’” Carey v. Saffold, 536 U.S. 214, 219–
20 (2002). Further, “an application is ‘properly filed’ when its delivery and acceptance are in

compliance with the applicable laws and rules governing filings. These usually prescribe, for
example, the form of the document, the time limits upon its delivery, the court and office in
which it must be lodged, and the requisite filing fee.” Artuz v. Bennett, 531 U.S. 4, 8 (2000)
(citations and emphasis omitted).
Here, sentencing occurred on January 13, 2017. Doc. 15-3 at 16. Considering Clark’s
various appeals and motions, Falkenrath begins her statute-of-limitations calculation on
November 29, 2021: the date the Missouri Court of Appeals issued its mandate after denying
Clark’s appeal. Doc. 15 at 9; see Clark, No. ED109130. With one exception, the Court agrees
that Clark tolled this time by properly filing an application for state post-conviction review. See
Carey, 536 U.S. at 219–20. The exception: Clark filed his original Notice of Appeal 35 days
late—on February 27, 2017. See Clark, No. ED105347; see Missouri Supreme Court Rule
30.01, 81.04 (providing defendants 10 days to file an appeal). Although the Missouri Court of
Appeals accepted the late notice, “an application is not ‘pending’ between the expiration of the

time for appeal and the filing of a petition for belated appeal.” Streu v. Dormire, 557 F.3d 960,
966 (8th Cir. 2009) (citations omitted). For this calculation, the Eighth Circuit includes the day
of filing as a “not pending” day. See, e.g., id. at 967 (finding that “AEDPA’s limitations period
was not tolled in [petitioner]’s case during the 116 days between November 7, 2005, and March
3, 2006” even though only 115 days fall between those two dates, meaning the court included the
last day in the calculation). Thus, Clark failed to toll the 35 days.
Further, the Court disagrees with Falkenrath’s beginning her calculation on November
29, 2021. See doc. 15 at 9. When the court issued its mandate, Clark immediately moved to
recall it. Clark, No. ED109130. And a properly filed motion to recall the mandate tolls the
statute of limitations. Bishop v. Dormire, 526 F.3d 382, 383 (8th Cir. 2008). Thus, Clark’s time

remained tolled for the two months of his pending recall, which resulted in denial. Clark, No.
ED109130.
Additionally, Falkenrath fails to toll the full time of Clark’s habeas petition. About a
month after the recall denial, Clark, on February 28, 2022, filed a second Rule 91 motion. Clark,
No. 22AC-CC00090. The court denied the motion, he appealed, and the appellate court
affirmed. Id.; Clark, No. WD85478. The appellate court then issued its mandate on January 11,
2023. Id. These Rule 91 proceedings also tolled Clark’s time. See Polson v. Bowersox, 595
F.3d 873, 875 (8th Cir. 2010) (“Rule 91 proceedings [are] ‘other collateral review with respect to
the pertinent judgment or claim.’”).
Falkenrath argues that Clark’s June 23, 2022 petition “was not properly filed . . . because
the petition was filed as an appeal from the denial of habeas petition . . . , and there is no appeal
from the denial of habeas petition in Missouri.” Doc. 15 at 10 (emphasis omitted). The Supreme
Court deems an application “properly filed” “when its delivery and acceptance are in compliance

with the applicable laws and rules governing filings.” Artuz, 531 U.S. at 8 (emphasis omitted).
And the Court distinguishes properly filed petitions from meritless claims: “the question
whether an application has been ‘properly filed’ is quite separate from the question whether the
claims contained in the application are meritorious and free of procedural bar.” Artuz, 531 U.S.
at 9 (emphasis omitted).
Here, the Missouri Court of Appeals accepted Clark’s petition, analyzed his claims, and
then denied each. See doc. 15-38. Falkenrath points to no authority deeming such petitions “not
properly filed.” And the given “considerations of comity,” the Court declines to do so now.
Streu, 557 F.3d at 963. “AEDPA’s tolling provision was meant to ‘encourage petitioners to seek
relief from state courts in the first instance.’” Id. (quoting Rhines v. Weber, 544 U.S. 269, 276

(2005)); cf. id. at 964 (“If Missouri courts have decided to entertain motions to reopen post-
conviction proceedings despite the effect on the finality of their own judgments, then federal
courts arguably should respect that decision by tolling the statute of limitations while such
motions are pending.” (citations omitted)).
Overall, Falkenrath argues Clark needed to file his federal habeas petition by November
30, 2022, and that Clark filed his petition 294 days late—on September 20, 2023. Doc. 15 at 9–
10. But this calculation fails to toll the 58 days for Clark’s recall and the 317 days for Clark’s
second Rule 91 petition. With this, the Court declines to dismiss Clark’s petition as untimely.
B. Proper form
Second, Falkenrath argues that Clark’s petition “is not proper” because he incorporates
claims from several state-court pleadings. Doc. 15 at 19 (citing Adams v. Armontrout, 897 F.2d
332, 333 (8th Cir. 1990)). While Falkenrath raises this issue, she asks for no relief: she asks the

Court neither to return nor to dismiss the petition for this reason. See id.
Rule 2(c) of the Rules Governing Section 2254 Cases in the United States District Courts
requires a petitioner to “specify all the grounds for relief available to the petitioner” and “state
the facts supporting each ground,” among other things. In Adams, the Eighth Circuit addressed a
prior version of this rule and held that “Rule 2(c) explicitly requires that a petitioner summarize
the facts supporting each of the alleged grounds for relief. [A petitioner]’s general reference to
the transcripts, case records, and briefs on appeal patently fails to comply with Rule 2(c).”
Adams, 897 F.2d at 333; see also id. (“Section 2254 Rule 2(c) provides in relevant part that the
petition . . . ‘shall set forth in summary form the facts supporting each of the grounds thus
specified.’” (emphasis removed)). When the petitioner fails to satisfy Rule 2(c), the district court

may return the petition. Id.; see also id. at 334 (providing petitioner 60 days to refile his petition
in proper form).
Here, Clark fails to identify the specific claims and facts in his habeas form. See
generally doc. 1. Rather, he “incorporated” claims and facts from his various state-court filings
and then attached the filings to his petition. See id. at 5–12; see also docs. 1-1–1-16. Even so,
Falkenrath has responded to Clark’s numerous claims. See doc. 15 at 20–33. Considering
Falkenrath’s response brief, the Court declines to now return Clark’s petition. See, e.g., Coleman
v. Redington, No. 4:18-CV-1750-RLW, 2022 WL 225656, at *2 (E.D. Mo. Jan. 26, 2022) (“In
the interests of justice, the Court will liberally construe the Petition despite Petitioner’s failure to
comply with Rule 2(c), particularly where Respondent did not move to dismiss on this basis and
was able to discern and respond to the issues Petitioner raises.”). Therefore, the Court now turns
to Clark’s individual claims.
C. Individual claims

1. Ground 1
As ground 1, Clark claims to incorporate six points from a previous state filing, but the
filing contains only five points. Compare doc. 1 at 5 (asserting doc. 1-7 contains six points) with
doc. 1-7 at 23–24 (containing only five points). The Court addresses the five points below.
a. Point 1: improperly sustaining the State’s objection
In point 1, Clark argues that the trial court erred by sustaining the State’s objection during
the cross-examination of Canterbury, the criminal informant. Doc. 1-7 at 23. The Missouri
Court of Appeals previously rejected this claim, finding that Clark failed to preserve it and that
the trial court did not plainly err. Doc. 15-10 at 5–8. The Court finds this point procedurally
defaulted.

“[A]ny claims not properly raised before the state court are procedurally defaulted.”
Moore-El v. Luebbers, 446 F.3d 890, 896 (8th Cir. 2006) (first citing Sawyer v. Whitley, 505
U.S. 333, 338 (1992); then citing Abdullah v. Groose, 75 F.3d 408, 411 (8th Cir. 1996) (en
banc)). Further, “a federal habeas court cannot reach an otherwise unpreserved and procedurally
defaulted claim merely because a reviewing state court analyzed that claim for plain error.”
Clark v. Bertsch, 780 F.3d 873, 874 (8th Cir. 2015) (citing Hayes v. Lockhart, 766 F.2d 1247,
1253 (8th Cir. 1985)). To avoid this procedural bar, the petitioner must “establish either cause
for the default and actual prejudice, or that the default will result in a fundamental miscarriage of
justice.” Moore-El, 446 F.3d at 896 (citing Sawyer, 505 U.S. at 338–39).
The state appellate court found that Clark “failed to preserve his claim of error regarding
cross-examination by failing to raise this specific issue in his motion for new trial.” Doc. 15-10
at 6. Specifically, Clark provided different rationales in his original motion and subsequent
appeal. Id. Because of this, the court then reviewed the unpreserved claim “for plain error

only.” Id. (citing State v. Howery, 427 S.W.3d 236, 248 (Mo. Ct. App. 2014)). Although the
state court analyzed this claim, this Court “cannot reach [this] unpreserved and procedurally
defaulted claim.” Bertsch, 780 F.3d at 874 (citing Hayes, 766 F.2d at 1253).
Further, Clark presents no argument to excuse his procedural default. As Clark merely
incorporates his state filings, he fails to address the present standard. And he fails to “establish
either cause for the default and actual prejudice, or that the default will result in a fundamental
miscarriage of justice.” Moore-El, 446 F.3d at 896 (citing Sawyer, 505 U.S. at 338–39); see also
Cagle v. Norris, 474 F.3d 1090, 1099 (8th Cir. 2007) (requiring prisoner to “demonstrate cause”
and holding that “[i]f a prisoner fails to demonstrate cause, the court need not address prejudice”
(citations omitted)); Abdi v. Hatch, 450 F.3d 334, 338 (8th Cir. 2006) (“[The fundamental-

miscarriage-of-justice] exception requires a habeas petitioner to present new evidence that
affirmatively demonstrates that he is innocent of the crime for which he was convicted.” (citation
omitted)). Thus, the Court denies point 1.
b. Point 2: insufficient evidence for knowing possession
In point 2, Clark argues that the trial court erred in denying his acquittal motion “because
the State failed to introduce any evidence that Clark knowingly possessed
methamphetamine . . . , oxycodone . . . , or syringes.” Doc. 1-7 at 23. The Missouri Court of
Appeals rejected this claim, doc. 15-10 at 8–10, and this Court does the same.
For insufficient-evidence claims, “the relevant question is whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.” Bookwalter v. Vandergriff, 73
F.4th 622, 625 (8th Cir. 2023) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). With
this, a petitioner “is entitled to habeas corpus relief if it is found that upon the record evidence
adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable

doubt.” Id. (quoting Jackson, 443 U.S. at 324). But “[i]f the jury’s inferences are not ‘so
insupportable as to fall below the threshold of bare rationality,’ then . . . [the] claim must fail.”
Id. (emphasis omitted) (quoting Coleman v. Johnson, 566 U.S. 650, 656 (2012) (per curiam)).
Under this analysis, Clark must overcome “two layers of judicial deference.” Id. First,
the jury determines “what conclusions to draw from the evidence, and on direct appeal, a
reviewing court will not set aside a jury’s verdict unless no rational trier of fact could have
agreed with the jury.” Id. Second, on habeas review, this Court “will not overturn a state-court
decision rejecting an evidence-sufficiency challenge unless that decision was objectively
unreasonable.” Id. But because he merely incorporated his state-court filings, Clark fails to
explain how he overcomes the “high bar in [this] federal habeas proceeding[].” Id. (quoting

Coleman, 556 U.S. at 651).
The Missouri Court of Appeals identified multiple facts supporting Clark’s knowing
possession of methamphetamine, oxycodone, and syringes:
Here, the evidence revealed [Clark] lived in and sold drugs from the home. The
syringes were found in a drawer in the master bedroom, the same room in which
the troopers found [Clark] lying on the floor. The methamphetamine, oxycodone,
and a glass smoking device were all located in the bathroom, a room [Clark] had
access to as an occupant of the home. A digital scale along with a spoon and a soda
can, both used to ingest heroin, were also found in the house. When police executed
the search warrant, [Clark] refused to open the door for the troopers, suggesting
[Clark] knew of the presence of illegal substances within the house.
Doc. 15-10 at 10. With these multiple facts supporting possession, the Court cannot say that the
Missouri Court of Appeals’ decision was “objectively unreasonable.” Bookwalter, 73 F.4th at
625. Thus, the Court denies point 2.
c. Point 3: insufficient evidence connecting syringes to
methamphetamine
In point 3, Clark brings another insufficient-evidence claim: the trial court erred in
denying his acquittal motion “because the State failed to introduce evidence to . . . establish that
Clark intended to use the syringes for methamphetamine.” Doc. 1-7 at 23. The Missouri Court
of Appeals also rejected this argument, doc. 15-10 at 11–12, and this Court does the same.
The Court must uphold the state court’s decision “unless that decision was objectively

unreasonable.” Bookwalter, 73 F.4th at 625. The Missouri Court of Appeals recounted how
“[s]yringes, other drug paraphernalia, and methamphetamine were discovered by the police
inside the house.” Doc. 15-10 at 12. And it determined that “[w]hile the State presented
evidence suggesting the syringes could be used to inject heroin, a reasonable jury could conclude
[Clark] intended to use the syringes to inject methamphetamine.” Id. Thus, “[t]he presence of
both the syringes and methamphetamine in the house was sufficient to support the conviction of
possession of drug paraphernalia with intent to use.” Id. With these facts and inferences, the
Court cannot say that the Missouri Court of Appeals’ decision was “objectively unreasonable.”
Bookwalter, 73 F.4th at 625. Therefore, the Court denies point 3.
d. Point 4: improper joinder
In point 4, Clark argues that the trial court erred in denying his motion alleging improper

joinder because “the possessory crimes . . . were not ‘connected’ with the distribution
crimes . . . , in that they arose on different dates, and were of a substantially different character.”
Doc. 1-7 at 24. The Missouri Court of Appeals rejected this claim, doc. 15-10 at 12–14, and this
Court does the same.
“Improper joinder does not, in itself, violate the Constitution. Rather, misjoinder would
rise 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. Mann, 701 F.3d 274, 290
(8th Cir. 2012) (quoting United States v. Lane, 474 U.S. 438, 446 n.8 (1986)). Also, “[t]o obtain
habeas relief for failure to sever, [the petitioner] must show 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. Dep’t of Corrs., 969 F.2d 606, 608 (8th Cir. 1992)).
First, the court determined that joinder was proper:
Joinder of the charges was proper in this case because [Clark]’s possession offenses
were connected to the distribution charges, in that the methamphetamine,
oxycodone, and syringes possessed by [Clark] were discovered during execution of
the search warrant and upon [Clark]’s arrest for distribution of heroin and were part
of the series of events leading to the distribution charges.
Doc. 15-10 at 13–14. Next, the court determined Clark failed to demonstrate any prejudice:
“The evidence in this case was straightforward and there was no risk of the jury confusing the
evidence or the charges. The jury received separate verdict-directing instructions and was
specifically instructed to consider each offense separately.” Id. at 14.
Clark fails to address the present standard, failing to show “prejudice so great as to deny
[him] his Fifth Amendment right to a fair trial.” Mann, 701 F.3d at 290 (quoting Lane, 474 U.S.
at 446 n.8). And he fails to show a “fundamentally unfair” trial. Wharton-El, 38 F.3d at 374
(quoting Hollins, 969 F.2d at 606). Thus, the Court denies point 4.
e. Point 5: speedy-trial violation
In point 5, Clark argues the trial court erred in denying his motion to dismiss for lack of a
speedy trial. Doc. 1-7 at 24. Specifically, he complains of the “540-day delay from the date of
arrest to trial, and a 275-day delay from indictment to trial.” Id. The Missouri Court of Appeals
rejected this claim, doc. 15-10 at 14–19, and this Court does the same.
In Barker v. Wingo, “the Supreme Court explained that speedy trial cases are to be
evaluated by a balancing test ‘that necessarily compels courts to approach speedy trial cases on

an ad hoc basis.’” Taylor v. Roper, 561 F.3d 859, 863 (8th Cir. 2009) (quoting Barker v. Wingo,
407 U.S. 514, 529 (1972)). For this, the Supreme Court provided four “factors which courts
should assess in determining whether a particular defendant has been deprived of his right” to a
speedy trial: (1) “[l]ength of delay,” (2) “the reason for the delay,” (3) “the defendant’s assertion
of his right,” and (4) “prejudice to the defendant.” Barker, 407 U.S. at 530 (citations omitted);
see also Matthews v. Lockhart, 726 F.2d 394, 396 (8th Cir. 1984) (applying the “four[-]part test
enunciated by the Supreme Court in Barker” (citing Barker, 407 U.S. 514)).
Here, Clark was arrested on February 18, 2015; a day later, the State filed a complaint
against him. Doc. 15-10 at 14. A month later, on March 18, Clark’s probation from a previous
case was revoked, resulting in Clark’s incarceration. Id. After the court dismissed Clark’s case

without prejudice in September, the State refiled charges against Clark on November 10. Id.
About a year after his arrest, on February 26, 2016, Clark filed a request under the Uniform
Mandatory Disposition of Detainers Law, id. at 15, which requires that “the indictment . . . be
brought to trial” within 180 days after a UMDDL request, Mo. Rev. Stat. § 217.460 (2009).
Then in the beginning of August, Clark moved to dismiss his case for violating his constitutional
right to a speedy trial. Doc. 15-10 at 15. On August 16, the court denied Clark’s motion and
started trial—within the 180-day period required by the UMDDL. Id.
Based on these facts and applying the four Barker factors, the Missouri Court of Appeals
rejected Clark’s speedy-trial-violation claim. Doc. 15-10 at 15–19. For the first factor, the court
agreed with Clark and found the 18-month delay between arrest and trial “presumptively
prejudicial.” Id. at 16. With this, the court proceeded to the remaining factors. Id.
For the second factor, the court found that the delays weighed against the State “but not
heavily” because the delays were “for neutral reasons.” Id. at 17. The court attributed the

following delays to the State: (1) delay between Clark’s arrest and initial preliminary hearing;
(2) delay between initial preliminary hearing and the trial court’s dismissal of the case without
prejudice; and (3) delay between November 2015 indictment and June 2016 jury-trial setting. Id.
But Clark did not allege and the court did not find that the State delayed “to gain a tactical
advantage.” See Matthews, 726 F.2d at 397 (citing Barker, 407 U.S. at 531). On review, this
Court agrees that these delays do not weigh heavily against the State. See id. (Contrasting
“[d]elays that result directly from the press of other business affecting defense counsel” with
intentional delays “to gain a tactical advantage” (citations omitted)); see also Barker, 407 U.S. at
531 (“A deliberate attempt to delay the trial in order to hamper the defense should be weighted
heavily against the government. A more neutral reason such as negligence or overcrowded

courts should be weighted less heavily but nevertheless should be considered since the ultimate
responsibility for such circumstances must rest with the government rather than with the
defendant.”).
Further, the state appellate court attributed one delay to Clark: the delay between the
initial trial date and the new trial date. Doc. 15-10 at 17–18. After Clark obtained new trial
counsel, counsel requested a continuance to prepare for trial. Id. This resulted in a two-month
delay. Id. at 18.
For the third factor, the court found that Clark’s “failure to assert his constitutional
speedy trial right until almost 18 months after his arrest and less than 2 weeks before the date of
trial weigh[ed] against his claim.” Id. While Clark filed a UMDDL request on February 26,
2016, he did not assert his constitutional speedy-trial right until August 4, 2016. Id. Trial
occurred two weeks later. Id. Because of this, the Court agrees the third factor weighs against
Clark.

For the fourth factor, the court assessed “the interests the right was designed to protect.”
Id.; see Barker, 407 U.S. at 532 (“[The Supreme] Court has identified three such interests: (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.”). First, the court found that
“[a]lthough [Clark] was incarcerated pending trial, this was the result of the revocation of his
probation on his previous case and it cannot be said that the charges in this case resulted in
oppressive pretrial incarceration.” Doc. 15-10 at 18–19. Second, “[Clark did] not allege he
suffered any extraordinary anxiety or concern from the delay.” Id. at 19. Finally, “[Clark]’s
contention that his defense was actually impaired by the delay is speculative and unsupported by
the record.” Id.

Overall, the Court finds that the Missouri Court of Appeals’ determination “was neither
contrary to nor an unreasonable application of federal law.” Taylor, 561 F.3d at 863. Thus, the
Court denies point 5.
2. Grounds 2 and 4
In grounds 2 and 4, Clark raises six ineffective-assistance-of-counsel claims each. But
one of the ground-2 claims overlaps with a ground-4 claim. The Court addresses the claims
below, combining related claims.
To succeed on an ineffective-assistance-of-counsel claim, a petitioner must demonstrate
that “counsel’s performance was deficient” and that “the deficient performance prejudiced the
defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). “Surmounting Strickland’s high
bar is never an easy task.” Padilla v. Kentucky, 559 U.S. 356, 371 (2010) (citations omitted).
Counsel should be “strongly presumed to have rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional judgment.” Strickland, 466 U.S.

at 690. For federal courts reviewing state proceedings, “[t]he pivotal question is whether the
state court’s application of the Strickland standard was unreasonable.” Harrington v. Richter,
562 U.S. 86, 101 (2011). “This is different from asking whether defense counsel’s performance
fell below Strickland’s standard.” Id. To grant relief, a federal habeas court cannot simply
disagree with a state court but must find the state court’s adjudication objectively unreasonable.
Lockyer v. Andrade, 538 U.S. 63, 75 (2003). Review is thus “doubly deferential,” requiring a
“highly deferential look at counsel’s performance through deferential lens of § 2254(d).” Cullen
v. Pinholster, 563 U.S. 170, 190 (2011) (internal quotations omitted).
To prevail on Strickland’s performance prong, a petitioner must overcome the ‘“strong
presumption’ that counsel’s representation was within the ‘wide range’ of reasonable

professional assistance” and must establish that counsel’s performance “amounted to
incompetence.” Harrington, 562 U.S. at 104–05 (quoting Strickland, 466 U.S. at 689–90).
Further, “strategic choices made after thorough investigation of law and facts relevant to
plausible options are virtually unchallengeable; and strategic choices made after less than
complete investigation are reasonable precisely to the extent that reasonable professional
judgments support the limitations on investigation.” Strickland, 466 U.S at 690–91.
To prevail on Strickland’s prejudice prong, a petitioner must demonstrate “a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different.” Id. at 694. For a petitioner to succeed on the prejudice prong, counsel’s errors
must be “so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.”
Strickland, 466 U.S. at 687. “[T]he difference between Strickland’s prejudice standard and a
more-probable-than-not standard is slight and matters ‘only in the rarest case.’” Dorsey v.
Vandergriff, 30 F.4th 752, 757 (8th Cir. 2022) (quoting Harrington, 562 U.S. at 111–12).

a. Points 72 and 20: failure to interview and call witnesses
In point 7, Clark alleges trial counsel failed to review Canterbury’s deposition with Clark
or interview witnesses—specifically Christopher Shunk—regarding their interactions with
Canterbury. Doc. 1-9 at 10. And in point 20, Clark again alleges trial counsel failed to
investigate and call Shunk. Doc. 1-6 at 97. The state court rejected this claim when raised in
Clark’s Rule 29.15 motion, id. at 142–43, and this Court does the same.
Clark bears “the burden of proving that his counsel’s performance fell below an objective
standard of reasonableness.” Wing v. Sargent, 940 F.2d 1189, 1191 (8th Cir. 1991) (first citing
Strickland, 466 U.S. at 691; and then citing Laws v. Armontrout, 863 F.2d 1377, 1387 (8th Cir.
1988) (en banc)). But “[t]he decision not to call a witness is a ‘virtually unchallengeable’

decision of trial strategy.” United States v. Staples, 410 F.3d 484, 488 (8th Cir. 2005) (quoting
United States v. Davidson, 122 F.3d 531, 538 (8th Cir. 1997)).
Relying upon Missouri law, the Missouri Court of Appeals found that Clark “failed to
meet his burden to establish any of the elements required for relief on this point.” Doc. 1-6
at 143. He “offered no statements from these witnesses, no depositions were submitted to the
court, nor did any of them testify at the PCR hearing.” Id. Rather, Clark “offered only his own
beliefs about what the witnesses might testify to.” Id. Because of this, the court denied Clark’s
claim.

2 To be consistent with both parties’ filings, the Court omits “point 6.” See, e.g., doc. 15 at 24 (“As petitioner does
not seem to have a claim 6, Respondent moves to claim 7 for consistency between the pleadings”).
This finding comports with the Strickland standard: “speculation as to how the others . . .
would have testified fails to meet [the petitioner’s] burden of proof that counsel’s assistance was
ineffective.” Wing, 940 F.2d at 1191 (8th Cir. 1991) (citations omitted). Thus, the Court denies
points 7 and 20.

b. Point 8: failure to preserve and raise issue
In point 8, Clark brings ineffective-assistance-of-counsel claims against both trial and
appellate counsel for failing to preserve and then raise the issue in point 1: the sustained
objection during Canterbury’s cross-examination. Doc. 1-9 at 10. The state court rejected this
claim when raised in Clark’s Rule 29.15 motion, doc. 1-6 at 141, and this Court does the same.
To prevail on Strickland’s prejudice prong, a petitioner must demonstrate “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. Further, to grant relief, this Court must find the
state court’s adjudication objectively unreasonable. Lockyer, 538 U.S. at 75. When Clark
appealed the trial court’s sustaining of the state’s objection, the appellate court reviewed for

plain error and found none:
The trial court did not plainly err in limiting [Clark]’s cross-examination of
Canterbury because [Clark] was able to question Canterbury at length about his
drug use, his illegal purchase of prescription pain medications, and the failure of
the police to arrest him for those transactions. Furthermore, [Clark] cannot show
he was prejudiced by the limitation. Although the court limited defense counsel’s
cross-examination regarding whether Canterbury received favorable treatment
from police officers, Canterbury testified no one promised him anything in
exchange for his work as an informant, including the dismissal of criminal charges.
Doc. 15-10 at 7–8. Based on this finding, the state court denied Clark’s ineffective-assistance-
of-counsel claim. Doc. 1-6 at 141. Ultimately, the state court did “not believe [Clark] would
have prevailed on appeal had that issue been properly preserved, and thus [Clark] suffered no
prejudice from the failure to preserve the issue.” Id. Having reviewed the state court’s factual
and legal analysis, this Court does not find the state court’s adjudication objectively
unreasonable. Therefore, the Court denies point 8.
c. Point 9: trial counsel’s conflict of interest
In point 9, Clark alleges trial counsel (1) “labor[ed] under an actual conflict of interest”;

(2) failed “to follow the court’s instructions to notice up . . . Clark’s pro se motions”; and
(3) failed to select a fair and impartial jury. Doc. 1-9 at 11. The state court rejected the first
complaint when raised in Clark’s Rule 29.15 motion. Doc. 1-6 at 143. But Clark failed to raise
the second and third complaints before his Rule 91 petition.
Like the state court, this Court rejects Clark’s first complaint. Clark again fails to
establish prejudice by demonstrating “a reasonable probability” of a different outcome,
Strickland, 466 U.S. at 687, 694, and fails to prove—or even argue—the objective
unreasonableness of the state court’s adjudication, Lockyer, 538 U.S. at 75. Here, the state court
assessed the evidence and found no prejudice:
There was no evidence offered at the PCR hearing regarding any actual conflict of
interest. There was no evidence that [trial counsel] personally represented any co-
defendant. From [trial counsel]’s testimony, [Clark]’s case was “conflicted out” of
her office because of an internal policy regarding co-defendants rather than an
actual conflict of interest. Further, it does not appear from the record that [trial
counsel] ever entered her appearance on [Clark]’s behalf nor did she do anything
other than take [Clark]’s application for Public Defender services, prior to second-
chairing [the case]. Moreover, [Clark] has established no prejudice from any
alleged conflict of interest.
Doc. 1-6 at 143. Based on this analysis, the Court cannot find the state court’s adjudication
objectively unreasonable. Thus, the Court denies the first complaint.
Further, the Court rejects the second and third complaints as procedurally defaulted.
Typically, if “a state habeas petitioner fails to raise a claim on appeal or in a motion for post
conviction relief . . . , the Missouri courts will not review it.” Sloan v. Delo, 54 F.3d 1371, 1382
(8th Cir. 1995); see also Reese v. Delo, 94 F.3d 1177, 1181 (8th Cir. 1996) (rejecting contention
that “rais[ing] [ineffective-assistance claim] in [a] state habeas corpus petition pursuant to
Missouri Supreme Court Rule 91” cures failure to advance claim on appeal (citing State ex rel.
Simmons v. White, 866 S.W.2d 443, 444 (Mo. 1993)). To overcome this bar, the claim must
raise “a jurisdictional issue or present[] an ‘issue of manifest injustice resulting from rare and

extraordinary circumstances and warranting the relief requested.’” Sloan, 54 F.3d at 1382
(quoting White, 866 S.W.2d at 444).
Here, Clark failed to raise his second and third complaints on appeal, see doc. 1-6 at 71–
76; rather, he raised them in his Rule 91 petition, see doc. 1-9 at 11. Further, neither exception
applies here. “Ineffective assistance of counsel does not affect a court’s jurisdiction, and
[Clark]’s claims do not represent the rare case of manifest injustice.” Sloan, 54 F.3d at 1382.
Thus, his second and third complaints are procedurally defaulted. For these reasons, the Court
denies point 9.
d. Point 10: failure to object to prosecutor’s expression of
personal opinion
In point 10, Clark complains “trial counsel failed to object to the prosecutor’s improper
expressions of personal opinion in his opening statement.” Doc. 1-9 at 11. While Clark raised
this claim in his Rule 91 petition, see id. at 23–24, he failed to raise it on appeal. Like the claims
in point 9, that failure bars this claim. Sloan, 54 F.3d at 1382. Thus, the Court denies point 10
as procedurally defaulted.
e. Point 11: failures regarding chain of custody

In point 11, Clark alleges trial counsel failed to properly investigate, prepare a defense
regarding, and challenge the chain of custody for three groups of evidence: (1) “the seven
chunks of heroin detailed in Sergeant Crump’s report on February 15, 2015”; (2) “the heroin and
gold coin detailed in Trooper Jannin’s report on February 17, 2015”; and (3) “the $90 and $10
bills detailed in the Trooper Jannin’s and Sergeant Ellsworth’s reports on February 18, 2015.”
Doc. 1-9 at 12. Clark failed to raise the first and second complaints before his Rule 91 petition.
And the state court rejected the third complaint when raised in Clark’s Rule 29.15 motion. Doc.
1-6 at 143.

Like points 9 and 10, Clark’s failure to raise his first and second complaints before his
Rule 91 petition bars review. Sloan, 54 F.3d at 1382. Thus, the Court denies those complaints
as procedurally defaulted.
Next, like the state court, this Court rejects Clark’s third complaint. Clark again fails to
establish prejudice by demonstrating “a reasonable probability” of a different outcome,
Strickland, 466 U.S. at 687, 694, and fails to prove—or even argue—the objective
unreasonableness of the state court’s adjudication, Lockyer, 538 U.S. at 75. Here, the state court
assessed the evidence and found no prejudice:
There is no evidence in the record of any actual, intentional malfeasance by any
witness regarding this evidence. Moreover, [Clark] can show no prejudice from
trial counsel’s failure to investigate what, by all appearances and by the sworn
testimony of Trooper Jannin, was a typographical error. The issue of the erroneous
serial number in the police report was first raised by the State. Moreover, the State
also submitted a photograph of the bill in question prior to the controlled buy, and
after it was later retrieved from [Clark]’s pocket.
Doc. 1-6 at 143 (emphasis in original) (citations omitted). Based on this analysis, the Court
cannot find the state court’s adjudication objectively unreasonable. Thus, the Court denies the
third complaint and denies point 11.
f. Point 12: failure to properly present speedy-trial violation
In point 12, Clark brings ineffective-assistance-of-counsel claims against both trial and
appellate counsel for failing to properly present the issue in point 5: the alleged speedy-trial
violation. Doc. 1-9 at 13. Specifically, Clark argues that trial counsel failed to present the
prejudice caused to Clark and that appellate counsel failed to “identify in Mr. Clark’s opening
brief the actual prejudice.” Id. The state court rejected this claim when raised in Clark’s Rule
29.15 motion, doc. 1-6 at 141–42, and this Court does the same.
Clark again fails to establish prejudice by demonstrating “a reasonable probability” of a
different outcome, Strickland, 466 U.S. at 687, 694, and fails to prove—or even argue—the

objective unreasonableness of the state court’s adjudication, Lockyer, 538 U.S. at 75. As
previously discussed, the Missouri Court of Appeals analyzed the prejudice alleged by Clark and
found it “insubstantial.” Doc. 15-10 at 18–19. When ruling on Clark’s Rule 29.15 motion,
another Missouri court concurred and addressed an additional claim of prejudice: the prejudice
of a parole set-back. Doc. 1-6 at 141–42. The second court found the additional prejudice claim
“insubstantial.” Id. And then the court found Clark “was not prejudiced” and rejected his
ineffective-assistance claim. Id.
Having reviewed the state court’s factual and legal analysis, this Court does not find the
state court’s adjudication objectively unreasonable. Thus, the Court denies point 12.
g. Points 15 and 16: failure to object to admission of tape-
recorded conversations
In points 15 and 16, Clark complains trial counsel failed to object to the admission of
tape-recorded conversations (exhibits 4, 7, and 12) through the testimony of Officers Crump and
Jannin. See id. at 97. The state court rejected these claims when raised in Clark’s Rule 29.15
motion, id. at 138, and this Court does the same.
Clark again fails to establish prejudice by demonstrating “a reasonable probability” of a

different outcome, Strickland, 466 U.S. at 687, 694, and fails to prove—or even argue—the
objective unreasonableness of the state court’s adjudication, Lockyer, 538 U.S. at 75. The state
court found no prejudice:
Although trial counsel did not object to the admission of State’s Exhibits 4, 7, and
12 to be admitted with no proper foundation laid, it is clear from the record that the
exhibits would have been admitted during the trial, and thus [Clark] was not
prejudiced by their admission. . . . Even if the recordings had not been admitted
based on the testimony of the officers, the State could and would have been able to
admit them with the testimony of [Canterbury], and [Clark] is therefore not
prejudiced by any failure to object at the admission of the recordings.
Doc. 1-6 at 138. Considering the state court’s review of the facts and law, this Court does not
find the state decision objectively unreasonable. Thus, the Court denies points 15 and 16.
h. Point 17: improper stipulation
In point 17, Clark alleges trial counsel improperly stipulated to the admission and
authenticity of certified lab reports, “conceding an element of the offense.” Id. at 97. The state
court rejected this claim when raised in Clark’s Rule 29.15 motion, id. at 138–39, and this Court
does the same.
First, the Missouri court determined that a “stipulation is generally a matter of trial
strategy and will not support a claim of ineffective assistance of counsel.” Id. at 139. The Court
does not find this objectively unreasonable. See, e.g., Lemon v. United States, 335 F.3d 1095,
1096 (8th Cir. 2003) (“[C]ounsel made the decision to stipulate as part of a reasonable trial
strategy in which counsel sought to disprove the element of possession rather than the drug
type.”). Second, the court found that when a “defendant’s primary defense at trial is . . . that he
had not taken part in the actual sale of [the substance], whether the substance is what the State
purports it to be is irrelevant to his defense and stipulation to its admission is not prejudicial.”
Doc. 1-6 at 139. Again, the Court does not find this objectively unreasonable. See, e.g., Lemon,
335 F.3d at 1096. Thus, the Court denies point 17.
i. Point 18: failure to object to hearsay and opinion testimony
In point 18, Clark complains trial counsel failed to object to hearsay and opinion
testimony by Officers Crump, Jannin, and Ellsworth. Doc. 1-6 at 97. The state court rejected
this claim when raised in Clark’s Rule 29.15 motion, id. at 139–40, and this Court does the same.
Clark again fails to establish prejudice by demonstrating “a reasonable probability” of a
different outcome, Strickland, 466 U.S. at 687, 694, and fails to prove—or even argue—the
objective unreasonableness of the state court’s adjudication, Lockyer, 538 U.S. at 75. First, the
state court reviewed the transcript and found that the hearsay rule did not apply to Ellsworth’s

testimony: “Ellsworth’s testimony regarding the recorded statements was limited to his review
of the recordings and things that were said by [Clark] on the recordings. Sergeant Ellsworth did
not testify regarding any statements made by [Canterbury].” Doc. 1-6 at 139. Second, the court
determined Crump’s and Jannin’s testimony regarding statements made by Canterbury were not
hearsay and caused no prejudice:
Here, [Canterbury] did testify. Moreover, the questions asked of the officers prior
to the answers in which they included hearsay statements of [Canterbury], were not
designed to elicit any hearsay testimony or any testimony regarding the identity of
[Clark], which is evidence of the statements not being offered for the truth of the
matter asserted. For example, Sergeant Crump was asked, “How did you become
involved with [Canterbury] on that date?” The very next question was, “After you
received that information, what did you do?” Trooper Jannin’s statement was
made after the jury had heard the second recording, and referenced that recording.
Finally . . . [Canterbury] did testify and was thus subject to cross examination on
the veracity of any statements, or as to whether he ever made it in the first instance.
Doc. 1-6 at 140. Considering the state court’s review of the facts and law, this Court does not
find the state decision objectively unreasonable. Thus, the Court denies point 18.
j. Point 19: improper reference to Clark as a heroin possessor
In point 19, Clark complains that trial counsel, in closing argument, asserted Clark was a
heroin possessor. Id. at 97. The state court rejected this claim when raised in Clark’s Rule 29.15
motion, id. at 140–41, and this Court does the same.
To prevail on Strickland’s performance prong, Clark must overcome the ‘“strong
presumption’ that counsel’s representation was within the ‘wide range’ of reasonable
professional assistance” and must establish that counsel’s performance “amounted to
incompetence.” Harrington, 562 U.S. at 104–05 (quoting Strickland, 466 U.S. at 689–90). With
this, “strategic choices made after thorough investigation of law and facts relevant to plausible
options are virtually unchallengeable.” Strickland, 466 U.S at 690. Further, to grant relief, this
Court must find the state court’s adjudication objectively unreasonable. Lockyer, 538 U.S. at 75.

The state court rejected Clark’s interpretation of counsel’s closing argument and found
counsel’s performance reasonable:
Trial counsel did not concede that [Clark] possessed any controlled substances on
the dates of the incidents involved in the trial. Trial counsel specifically attacked
the State’s evidence on each count in her closing argument, in arguing that the State
could not prove [Clark] delivered heroin nor possessed any of the other substances
seized in the search. It is clear from the record that trial counsel’s strategy—to
argue [Clark]’s innocence from this perspective, rather than to argue that [Clark]
was not even present, particularly in light of the testimony of four people who
observed [Clark] at the scene—was a sound, though ultimately unsuccessful, trial
strategy. Trial counsel did not, as [Clark] suggests in his amended motion, admit
[Clark] was a “heroin possessor.”
Doc. 1-6 at 141. Considering the state court’s review of the facts and law, this Court does not
find the state decision objectively unreasonable. Thus, the Court denies point 19.
3. Ground 3
As ground 3, Clark incorporates two points from his previously denied state habeas
petition. The Court addresses both below.
a. Point 13: excessive and disproportionate sentence
In point 13, Clark lists various constitutional rights but ultimately argues that the State
erred in denying his habeas petition because his sentence was “excessive and disproportionate.”
Doc. 1-12 at 11 (alleging deprivations of “due process of law, fundamental fairness, equal
protection of law, reliable sentencing, effective assistance of counsel, and freedom from cruel
and unusual punishment, as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth
Amendments”). Although Clark refers to federal constitutional rights, he takes issue with the
Missouri Court of Appeals’ interpretation of state law—specifically, the retroactive application
of a new Missouri sentencing scheme. See id. at 11–14.
The Court cannot review this claim. “A federal court may not re-examine a state court’s
interpretation and application of state law.” Schleeper v. Groose, 36 F.3d 735, 737 (8th Cir.

1994) (citing Estelle v. McGuire, 502 U.S. 62, 67–68 (1991)). The Missouri Court of Appeals
rejected Clark’s argument by relying on Missouri Supreme Court precedent: “Having carefully
reviewed and considered [Clark]’s filings, and related exhibits and court records, the Court
concludes that [Clark] was subject to the [Missouri] statutes authorizing sentencing that were in
force and effect at the time of his committed offenses.” Doc. 15-33 at 1 (citing Mitchell v.
Phillips, 596 S.W.3d 120 (Mo. 2020)). Thus, the Court denies point 13.
b. Point 14: failure to comply with Missouri Supreme Court Rule
In point 14, like point 13, Clark raises a state-law issue: “The [denial of habeas relief] is
clearly erroneous because the judgment entered by the trial court on May 30, 2017[,] was an
amended judgment, not an order nunc pro tunc[;] therefore, the trial court erred in entering the
judgment without complying with the requirements of Missouri Supreme Court Rule 75.01.”

Doc. 1-12 at 14. Previously, the Missouri Court of Appeals, relying upon Missouri Supreme
Court precedent, held that the trial court’s amended judgment “was not a new judgment, but was
instead an authorized nunc pro tunc judgment pursuant to Rule 29.12(c).” Doc. 15-33 at 1
(citing State ex rel Zinna v. Steele, 301 S.W.3d 510 (Mo. 2010)). Because this claim relates to
the interpretation and application of state law, the Court cannot review it. See Schleeper, 36 F.3d
at 737 (citing McGuire, 502 U.S. at 67–68). Thus, the Court denies point 14.
4. Ground 5 (point 21): due-process violation
As ground 5, Clark raises a single point. Specifically, he alleges a due-process violation
based on “cumulative prejudice”:
Clark raises over twenty individual trial errors, accross [sic] several different
categories in this Petition and Attachments A–M. The cumulative prejudice is
based herein, and therein, the trial court erro[r]s rendering the result of his criminal
trial fundamentally unfair in their unique sym[m]etry.
Doc. 1 at 12. The Court finds that this claim lacks merit.
The Eighth Circuit does not recognize cumulative-error claims: “cumulative error does
not call for habeas relief, as each habeas claim must stand or fall on its own.” Scott v. Jones, 915
F.2d 1188, 1191 (8th Cir. 1990) (citing Byrd v. Armontrout, 880 F.2d 1, 11 (8th Cir. 1989)); see
also Wainwright v. Lockhart, 80 F.3d 1226, 1233 (8th Cir. 1996) (“Errors that are not
unconstitutional individually cannot be added together to create a constitutional violation.
Neither cumulative effect of trial errors nor cumulative effect of attorney errors are grounds for
habeas relief.” (citations omitted)). Because Clark brings a cumulative-error claim not
cognizable under Eighth Circuit precedent, the Court denies point 21.
IV. Certificate of appealability
The Court finds that Clark has not made a “substantial showing of the denial of a
constitutional right” as is necessary for the Court to issue a certificate of appealability. 28 U.S.C.
§ 2253(c)(2); see also Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997) (explaining that a
“substantial showing” is a showing that the “issues are debatable among reasonable jurists, a
court could resolve the issues differently, or the issues deserve further proceedings”).
Accordingly, the Court does not issue a certificate of appealability for the claims raised in
Clark’s petition.

V. Clark’s contempt motion
The Court now addresses Clark’s motion for contempt. See doc. 14. After the Court
granted Falkenrath’s motion for extension of time, see docs. 12–13, Clark filed a contempt
motion against Falkenrath for allegedly violating the case-management order, doc. 14 at 1–2.
Because the Court granted Falkenrath’s motion, the Court finds that Falkenrath did not violate
any of its orders. Thus, the Court denies Clark’s motion.
VI. Conclusion
The Court denies Clark’s [1] Petition under 28 U.S.C. § 2254 for a Writ of Habeas
Corpus and dismisses the petition with prejudice. Further, the Court denies Clark’s [14] Motion
for Contempt. A separate order of dismissal accompanies this Memorandum and Order. The
Court does not issue a certificate of appealability.
So ordered this 26th day of July 2024.
2. CL
me IE ~
CHIEF UNITED STATES DISTRICT JUDGE

30

Appendix A

Clark Filing State Claim Federal Claim
“The trial court erred in sustaining the State’s objection
during the cross examination of Mark Canterbury
Appeal filed in because the questioning by Clark’s counsel regarding
State v. Clark, Canterbury’s drug use was relevant to the issue of Incorporated as
No. ED105347 Canterbury’s credibility, in that it established that ground 1, point 1
(Mo. Ct. App.) Canterbury perceived that he would get lenient treatment
from police officers in exchange for testifying against
Clark. . . .”
“The trial court erred in denying Defendant’s motion for
judgment of acquittal at the close of the State’s evidence
with respect to Counts IV, V, and VI because the State
failed to introduce any evidence that Clark knowingly Incorporated as

possessed methamphetamine (Count IV), oxycodone ground 1, point 2
(Count V), or syringes (Count VI), in that none of the
drugs or paraphernalia was in his actual possession at the
time of the February 18, 2015 search. . . .”
“The trial court erred in denying Defendant’s motion for
judgment of acquittal at the close of all evidence with
respect to Count VI because the State failed to introduce
Incorporated as
evidence to support an essential element of the claim, in
ground 1, point 3
that that [sic] State did not establish that Clark intended
to use the syringes for methamphetamine, as set out in
the jury instructions. . . .”
“The trial court erred in denying Clark’s motion for relief
of improper joinder because the possessory crimes—
counts IV through VI—were not “connected” with the Incorporated as

distribution crimes (Counts I-III), in that they arose on ground 1, point 4
different dates, and were of substantially different
character than those alleged in counts I-III. . . .”
“The Court erred in denying Clark’s motion to dismiss
for lack of a speedy trial because Clark was denied his
right to a speedy trial as guaranteed by the sixth and
fourteenth amendments to the United State Constitution,
and Article I, Section 18(a) of the Missouri Constitution,
in that a 540-day delay from the date of arrest to trial, Incorporated as

and a 275-day delay from indictment to trial, was ground 1, point 5
presumptively prejudicial, Clark did not contribute to the
delay, and Clark’s trial and the ordinary nature of the
alleged offense indicate the Respondent’s delay in going
to trial was unjustified, unnecessary, and prejudicial to
Clark. . . .”
Missouri
Criminal
Procedure
“[I]neffective assistance of trial counsel . . . failing to Incorporated as
Form No. 40 in
object to the admission of State[’]s Exhibit 4 (February ground 4, point
Clark v. State,
13, 2015)” 15
No. 18SF-
CC00110 (Mo.
Ct. App.)
“[I]neffective assistance of trial counsel . . . failing to Incorporated as
object to the admission of State[’]s Exhibit 7 and 12 ground 4, point
(February 17 and 18, 2015)” 16
Incorporated as
“[I]neffective assistance of trial counsel . . . conceding to
ground 4, point
an element of the offense by stipulation”
17
“[I]neffective assistance of trial counsel . . . fa[i]ling to Incorporated as
object to inadmissible hearsay and opinion testimony by ground 4, point
Officers Crump, Jannin and Ellsworth” 18
Incorporated as
“[I]neffective assistance of trial counsel . . . asserting
ground 4, point
[Clark] was in heroin possession”
19
Incorporated as
“[I]neffective assistance of trial counsel . . . failing to call
ground 4, point
Christopher Shunk”
20
“The Motion Court clearly erred in denying Mr. Clark’s
29.15 motion for postconviction relief after an
evidentiary hearing because he proved by a
preponderance of evidence that he was denied his rights
to due process of law and effective assistance of counsel
as guaranteed under the Fifth, Sixth and Fourteenth
Amendments to the United States Constitution and
Article I, §§ 10 and18(a) [sic] of the Missouri
Constitution in that trial counsels [sic] failed to act
Appeal of
reasonably as they did not review Mark Canterbury’s
habeas-petition
(A/K/A CI #6433) deposition with Mr. Clark or
denial in Clark Incorporated as
interview any witnesses, specifically Christopher Shunk,
v. Falkenrath, ground 2, point 7
regarding the confidential informant[’]s interactions with
WD84860
them prior to making a motion in limine to exclude it
(Mo. Ct. App.)
during the pretrial hearing, which was granted by the
court. Trial counsels [sic] failure to review this evidence
with Mr. Clark and subpoena witnesses, specifically
Christopher Shunk, prejudiced him thereby his
uninformed decision to proceed to trial and being unable
to assist in his defense without reviewing this evidence.
Had trial counsels [sic] performed adequate investigation
he could have rebutted CI #6433’s testimony, the jury
would have found out CI #6433 was lying, found him to
be not credible, and acquitted Mr. Clark of the offenses
against him. This court must reverse the Motion Court’s
judgment and remand for new trial. . . .”
“The Motion Court clearly erred in denying Mr. Clark’s
29.15 motion for postconviction relief after an
evidentiary hearing because he proved by a
preponderance of evidence that he was denied his rights
to due process of law and effective assistance of trial
counsel and appellate counsel as guaranteed by the Fifth,
Sixth and Fourteenth Amendments to the United States
Constitution and Article I, §§ 10 and 18(a) of the
Missouri Constitution in that trial counsel and appellate
counsel failed to act reasonably when: (1) trial counsel Incorporated as

failed to preserve the claim on the objection sustained by ground 2, point 8
the trial court regarding her questions concerning CI
#6433’s drug use for the purpose of impeaching his
credibility in the motion for new trial, (2) appellate
counsel failed to raise the claim presented in trial
counsel’s motion for new trial, and instead presented a
different claim on appeal which was also not preserved.
But for trial and appellate counsel’s ineffectiveness for
failing to raise this issue, the outcome of Mr. Clark’s trial
and appeal would have been different. . . .”
“The Motion Court erred in denying Mr. Clark’s Rule
29.15 motion because he proved by a preponderance of
evidence he was entitled to post-conviction relief in that
Counsel Geralyn Ruess was ineffective by laboring under
an actual conflict of interest which resulted in
abandonment of her professional and ethical duties.
Counsel failed to act as reasonably competent counsel
under similar circumstances would have, and no
reasonable trial strategy reason justified her failure to
follow the court’s instructions to notice up Mr. Clark’s
pro se motions. But for counsel’s failure, there is a
Incorporated as
reasonable probability that Mr. Clark’s motions would
ground 2, point 9
have been granted and the case dismissed. Competent
counsel would also have selected fair and impartial jury
which there is a reasonable probability would have
reached a different verdict. Counsel’s ineffectiveness
and the Motion Court’s inability to make rulings on the
motions denied Mr. Clark’s rights to access the court, to
due process of law and equal protection under the law, to
effective assistance of counsel, to a fair and impartial
jury, and to a fair trial as guaranteed by the Fifth, Sixth
and Fourteenth Amendments of the United States
Constitution and Article I, Sections 10 and 18(a) and
22(a) of the Missouri Constitution. This court must
reverse the Motion Court’s judgment and remand for
new trial. . . .”
“The Motion Court plainly erred in ruling that Mr. Clark
received effective assistance of counsel as guaranteed
under the Sixth and Fourteenth Amendments to the
United States Constitution and Article I, § 18(a) of the
Missouri Constitution, in that trial counsel failed to
Incorporated as
object to the prosecutor’s improper expressions of
ground 2, point
personal opinion in his opening statement. Reasonably
10
effective counsel would have made this objection, Mr.
Clark was prejudiced because had the objection been
made, there is a reasonable probability of a different
outcome. This court must reverse the Motion Court’s
judgment and remand for new trial. . . .”
“The Motion Court clearly erred in denying Mr. Clark’s
29.15 Motion for postconviction relief after an
evidentiary hearing because he proved by a
preponderance of evidence that he was denied his rights
to due process of law and effective assistance of trial
counsel as guaranteed by the Fifth, Sixth and Fourteenth
Amendments to the United States Constitution and
Article I, §§ 10, 14 and 18(a) of the Missouri
Constitution in that trial counsels [sic] failed to exercise
the customary skill and diligence that another reasonably
competent attorney would have under the same or similar
circumstances, by: (1) failing to properly investigate,
prepare a defense, and challeng[e] the chain of custody
of the seven chunks of heroin detailed in Sergeant
Incorporated as
Crump’s report on February 15, 2015, (2) failing to
ground 2, point
properly investigate, prepare a defense, and challeng[e]
11
the chain of custody of the heroin and gold coin detailed
in Trooper Jannin’s report on February 17, 2015, (3)
failing to properly investigate, prepare a defense, and
challeng[e] the chain of custody of the $90 and $10 bills
detailed in the Trooper Jannin’s and Sergeant Ellsworth’s
reports on February 18, 2015. Reasonable trial counsels
[sic] would have developed and elicited evidence from
these witnesses showing that the chain of custody was
lacking and that the integrity of the evidence had not
been preserved. Mr. Clark was prejudiced because had
this evidence been offered, there is a reasonable
probability of a different outcome. This court must
reverse the Motion Court’s judgment and remand for
new trial. . . .”
“The Motion Court clearly erred in denying Mr. Clark’s
29.15 motion for postconviction relief after an
evidentiary hearing because he proved by a
preponderance of evidence that he was denied his rights
to due process of law, right to a speedy trial, right to be
free from cruel and unusual punishment and effective
assistance of counsel as guaranteed under the Sixth,
Eighth, and Fourteenth Amendments to the United States
Constitution and Article I, §§ 10 and 18(a) of the
Missouri Constitution, in that trial counsel and appellate
counsel failed to act reasonably when: (1) trial counsels
[sic] were ineffective by failing to present, through
evidentiary hearing, the prejudice caused to movant as a
Incorporated as
result of the State’s and court’s failure to grant his
ground 2, point
constitutional right to a speedy trial and prejudice
12
resulting from the trial court’s denial of his motion to
dismiss the criminal charges because of a clear violation
of his constitutional right to a speedy trial. (2) Appellate
counsel was ineffective for his failure to identify in Mr.
Clark’s opening brief the actual prejudice previously
described and pled by movant in his pro se filings with
the trial court, but for trial and appellate counsel’s
ineffectiveness for failing to raise this issue, the outcome
of Mr. Clark’s trial and appeal would have been
different. This court must reverse Mr. Clark’s
convictions and sentences and remand this matter back to
the trial court with directions to dismiss the information
with prejudice. . . .”
“The order entered in Western District cause WD86295
deprived Clark of due process of law, fundamental
fairness, equal protection of law, reliable sentencing,
Writ of habeas
effective assistance of counsel, and freedom from cruel
corpus filed in
and unusual punishment, as guaranteed by the Fifth, Incorporated as
Clark v.
Sixth, Eighth, and Fourteenth Amendments to the United ground 3, point
Falkenrath,
States Constitution and Article I, Sections 2, 10, 18(a) 13
No. SC100155
and 21 of the Missouri Constitution in that a comparison
(Mo.)
of Clark’s case with all other similar cases, including
those resulting in a life sentence, demonstrate that
Clark’s sentence is excessive and disproportionate. . . .”
“The order entered in Western District cause WD86295
is clearly erroneous because the judgment entered by the
Incorporated as
trial court on May 30, 2017 was an amended judgment,
ground 3, point
not an order nunc pro tunc, therefore, the trial court erred
14
in entering the judgment without complying with the
requirements of Missouri Supreme Court Rule 75.01.”

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10651980. Public record. Not legal advice.