Hook v. Buckner

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

ROBERT HOOK, )

)

Petitioner, )

)

)

v. ) Case No. 4:21-CV-01251-SPM

)

MICHELE BUCKNER, )

)

)

Respondent. )

MEMORANDUM OPINION AND ORDER

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

Robert Hook (“Petitioner”) for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (ECF No.

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

Judge pursuant to 28 U.S.C. § 636(c)(1). (ECF No. 12). For the following reasons, the petition will

be denied.

I. FACTUAL BACKGROUND

The Missouri Court of Appeals summarized the facts of Petitioner’s case as follows:

In July 2013, Victim was five years old and resided with her mother and

father, Hook. Mother was incarcerated from July 8 through July 15, 2013. On July

11, 2013, Victim was staying with maternal grandmother, Mary Gibson

(“Grandmother”). While in the shower, Victim (R.H.) asked Grandmother why she

doesn’t take a shower with her like Hook does. Grandmother did not respond and

Victim did not say anything further about it that evening. The following morning,

on July 12, 2013, Grandmother tried to talk to Victim about showering with Hook

but Victim did not want to talk about it, said nothing happened, and went off to

play. A couple hours later, Victim came to Grandmother and told her that she was

ready to talk. Victim then told Grandmother, “daddy put his pee-pee in my pee-pee,

and my butt, too.” Victim told Grandmother that she was sure about what happened

and that she was not lying. Later that same day, Grandmother took Victim to Boone

Convenient Care (“BCC”) in Moberly where Victim was examined by Dr. Andrea

Eden (“Dr. Eden”). Grandmother was present for the exam and Victim repeated her

allegations to the doctor. Dr. Eden reported a possible sexual abuse to Child

Protective Services (“CPS”). Afterwards, Victim and Grandmother returned to

Grandmother’s house. Later that day, Hook unexpectedly came to Grandmother’s

house and told Grandmother that the police wanted to talk to him. Victim then told

Hook that she was sorry, that she told about “your pee-pee and my pee-pee,” and

gestured to his genital area and then to her own. The record is devoid of Hook’s

reaction to this statement by Victim.

Later that evening, Victim was placed in foster care with foster parents

(“Foster Mother” and “Foster Father,” respectively). The next morning, on July 13,

2013, Victim told Foster Mother and Foster Father that Victim was living with them

because, while pointing to her vaginal area “her daddy down there (indicating) with

his pee-pee.” A few days later, Victim repeated this disclosure to Foster Mother

and added “in her butt.” Victim stated that Hook had told her not to tell but that she

told Grandmother and Foster Mother.

Forensic interviewer at the Child Advocacy Center Ashton Eibel (“Eibel”)

interviewed Victim on two occasions and both were recorded by video. Videos of

both interviews were played for the jury. Eibel testified that she was trained not to

lead children to answer in a particular way by asking open-ended questions and

inviting narrative responses so children can tell what happened in their own

language. In the video of the first interview on July 15, 2013, Victim stated that her

mother was in jail and she wants her back because “[Hook] is so crazy that he does

this (pointing to her genital area) in there my pee-pee . . . it’s crazy.” Victim stated

her “pee-pee” has an “owie.” Victim stated her “pee-pee” hurts because it has a

“boo-boo” from jumping and falling on her “pee-pee” and “it went blood red.”

Victim stated that Hook put “his pee-pee . . . in [her] pee-pee” and her butt when

she had an “owie” and was bleeding and she said, “no, no, no.” She stated that he

put his “pee-pee” in her “pee-pee” more than one time. Victim stated this happened

at home while her mother was in jail. She stated she was on the couch where she

was watching movies with people putting “pee-pee in your mouth” and “putting

pee-pee in adult pee-pee.” She stated that when Hook put his “pee-pee” in her “pee-

pee” it felt bad and hurt. She stated that she told Grandmother what Hook did, she

stated, “I told on daddy” and Grandmother was upset. She stated that Hook put his

“pee-pee” in her butt one time at home when she was five.

Eibel interviewed Victim again on February 24, 2014, after being notified

either by Children’s Division or law enforcement that Victim had made an

additional disclosure. Eibel stated that additional disclosures are common with

child sexual assault victims. In that interview, Victim made the additional allegation

that Hook made her “suck his pee-pee.” In the video Victim came in and without

prompting drew a picture of Hook and herself and said “he did both of the things,”

“he did two times,” his “pee-pee” in her “pee-pee and butt.” She explained that the

picture is of herself walking away from Hook and telling him to leave her alone but

that he didn’t leave her alone; that he “did it” two times which she clarified to mean

“put his pee-pee in my pee-pee and butt” and “he’s in jail for that.” She stated that

she is telling the truth. She stated that she asked Hook to watch cartoons with her

but he put on an adult show which was not good. She stated it was about a girl who

put the boy’s “pee-pee” in her mouth and sucked it. Victim stated that Hook did

that to her; that he asked her to and she said she didn’t want to; and that he made

her do it to him. She stated that he made her “suck his pee” and she thought pee

was going in her mouth. She thinks she got sick from that—a hard cough. She said

it was horrible and nasty. She said afterwards they put their clothes on and came

out of the bedroom to get a drink. And then Hook got some things “that go in the

pee” that looked like soap which he put on her “pee-pee” and his “pee-pee.” Victim

stated that they stopped because someone knocked on the door so they put on their

clothes. She says she told her mother. She repeated that Hook put his “pee-pee” in

her “pee-pee” and butt.

Based on statements Victim gave during the July 15, 2013 forensic

interview, Detective Tracey Whearty (“Det. Whearty”) applied for a search warrant

looking for pornographic material and bodily fluids around the couch and in the

living room of Hook’s residence. The search warrant was executed on July 26,

2013. A videotape was found in the VCR in the living room which was hooked to

the TV. When played, the videotape depicted “footage of a female performing oral

sex on a male. And then the footage showed close up, zoomed in on the female

performing oral sex on the male. And then it showed the male inserting his penis in

the female’s vagina.” Two sections of the couch cushion that appeared to have

stains were cut and secured in evidence and sent to a lab for DNA testing to compare

with DNA samples previously taken from Victim and Hook.

Stacey Bolinger (“Bolinger”), the supervisor of the DNA case work section

of the Missouri State Highway Patrol crime laboratory testified that the DNA test

performed on a stain from Hook’s couch was done by criminalist Melina Jimenez

(“Jimenez”), an employee that Bolinger supervised. Jimenez is no longer employed

by the Missouri State Highway Patrol. Bolinger testified that results of the DNA

testing of the stain were consistent with Hook’s DNA profile. The DNA lab report

was admitted as State’s exhibit 43. Bolinger stated that the stain had a non-sperm

fraction and a sperm fraction. Bolinger testified that the DNA profile of non-sperm

fraction is consistent with being a mixture of two people and displayed female

gender attributes but both Victim and Hook were eliminated as a source of the

major contributing profile of that fraction. The source of the major contributor of

the non-sperm fraction was undetermined.

Staci Walters (“Walters”) testified that she performed a SAFE (Sexual

Assault Forensic Exam) exam of Victim on July 15, 2013, in the emergency room.

Walters testified that when she asked Victim why she was there Victim replied,

“that she had a hurt pee-pee, and she had a red owie ... she pointed to her rectum

with her finger and said, this is where I hurt.” She stated during her attempt at a

vaginal exam Victim said that it hurt and it was tender to the touch so Walters was

not able to view the hymen as well as she wanted. With regard to Victim’s rectal

area, Walters found Victim to have poor rectal tone, redness in the anal folds, and

an area that was linear whitish silver which might have indicated previous scarring.

Walters testified that these injuries could have come from injury, hygiene or sexual

abuse. Walters stated that in child sexual assault cases it is common not to have

injuries. She testified that her findings were inconclusive for abuse.

Dr. Holly Monroe (“Dr. Monroe”) performed a SAFE exam on Victim on

September 12, 2013, a recheck requested two months prior by Walters. This exam

rendered normal results. Dr. Monroe testified that the injuries noted by Walters

were not consistent with falling down.

Resp’t Ex. I, at 2-6. Petitioner was charged with first-degree child molestation, first-degree

statutory sodomy, first-degree statutory rape, and incest. Id. at 6. On June 12, 2015, Petitioner was

found guilty after a jury trial of all four charges. Id. On August 20, 2015, he was sentenced to ten

years’ imprisonment on each of the convictions of molestation, statutory sodomy, and statutory

rape, and four years’ imprisonment on the conviction of incest, with all sentences to be served

consecutively. Id. On November 8, 2016, his convictions were affirmed on direct appeal. Resp’t

Ex. E.

On February 6, 2017, Petitioner filed his pro se motion to vacate, set aside or correct the

judgment or sentence pursuant to Mo. Sup. Ct. R. 29.15. ECF No. 31-1. On June 19, 2017, through

appointed counsel, Petitioner filed his Amended Rule 29.15 Motion to Vacate Judgment and

Sentence, asserting several claims of ineffective assistance of trial counsel and appellate counsel.

ECF No. 31-2. The motion court held a hearing on Petitioner’s claims. Resp’t Ex. B. On February

21, 2019, the motion court sustained five claims of ineffective assistance of trial counsel, vacated

Petitioner’s convictions, and ordered a new trial. Resp’t Ex. I, at 6; ECF No. 31-3. The state

appealed. The Missouri Court of Appeals considered all five claims on the merits and reversed the

decision of the motion court on all five claims. Resp’t Ex. I, at 7-35.

On October 19, 2021, Petitioner’s pro se petition was electronically filed in the instant

action. ECF No. 1. On February 4, 2022, through counsel, Petitioner filed an amended petition.

ECF No. 9. In the amended petition, Petitioner asserts two grounds for relief: (1) ineffective

assistance of trial counsel based on the failure to investigate and present expert testimony regarding

the interview techniques utilized in the child advocacy center interviews of the alleged victim, the

investigation into the allegations of abuse, and the factors impacting disclosures of abuse; and (2)

ineffective assistance of trial counsel based on the failure to obtain and present certified copies of

the alleged victim’s medical records from Boone Convenient Care (“BCC”) of the first sexual

assault examination performed on the alleged victim.

II. LEGAL STANDARD

Where a claim has been adjudicated on the merits in state court proceedings, a federal court

may grant habeas relief only if the state court’s adjudication of the claim “(1) resulted in a decision

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

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

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

court proceeding.” 28 U.S.C. § 2254(d). “[A] determination of a factual issue made by a State

court shall be presumed to be correct,” and the petitioner has the “the burden of rebutting the

presumption of correctness by clear and convincing evidence.” 28 U.S.C.A. § 2254(e)(1).

A state court decision is “contrary to” clearly established Supreme Court precedents “if the

state court applies a rule that contradicts the governing law set forth in [the Supreme Court’s]

cases” or “if the state court confronts a set of facts that are materially indistinguishable from a

decision of [the Supreme] Court and nevertheless arrives at a result different from [the Supreme

Court’s] precedent.” Williams v. Taylor, 529 U.S. 362, 405-06 (2000); see also Brown v. Payton,

544 U.S. 133, 141 (2005). A state court decision involves an “unreasonable application” of clearly

established federal law if it “correctly identifies the governing legal rule but applies it unreasonably

to the facts of a particular prisoner’s case.” Williams, 529 U.S. at 407-08; see also Bell v. Cone,

535 U.S. 685, 694 (2002). “A state court decision is based on an unreasonable determination of

the facts only if the court’s presumptively correct factual findings do not enjoy support in the

record.” Bahtuoh v. Smith, 855 F.3d 868, 873 (8th Cir. 2017) (internal quotation marks omitted).

III. DISCUSSION

A. Timeliness

The Court first considers Respondent’s contention that the petition in this case was not

timely filed. As relevant here, 28 U.S.C. § 2244(d)(1) provides for a “1-year period of limitation”

applicable to state habeas petitions that runs from “the date on which the judgment became final

by the conclusion of direct review or the expiration of the time for seeking such review.”1

Additionally, “[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.” 28 U.S.C. § 2244(d)(2). The parties

appear to agree that Petitioner’s judgment became final, and the limitations period started to run,

on November 23, 2016; that the period ran for the 75 days before he filed his post-conviction

motion on February 6, 2017; that the period was then tolled until post-conviction relief review

ended on December 30, 2020; and that at that point 290 days remained. The limitations period thus

ended on Saturday, October 16, 2021, meaning that the petition needed to be filed no later than

Monday, October 18, 2021, to be timely. See Fed. R. Civ. P. 6(a)(1)(C). Respondent argues that

because the petition was not electronically filed in this Court until October 19, 2021, it was

untimely.2

1 The statute includes several other dates from which the period may start to run, none of which

are relevant here.

2 Respondent does not argue that the amended petition filed on February 4, 2022, does not relate

back to the originally filed petition. See Response to Order to Show Cause, ECF No. 15, at 12.

(“[Petitioner] subsequently filed an amended petition on February 4, 2022. Doc. 9. The timeliness

calculation remains the same because the amended petition appears to raise claims that ‘relate

back’ to the original petition”).

The Court finds the petition was timely filed. “[F]or purposes of applying 28 U.S.C.

§ 2244(d), a pro se prisoner’s petition for a writ of habeas corpus is filed on the date it is delivered

to prison authorities for mailing to the clerk of the court.” Nichols v. Bowersox, 172 F.3d 1068,

1077 (8th Cir. 1999), abrogated on other grounds by Riddle v. Kemma, 523 F.3d 850 (8th Cir.

2008). In his petition, Petitioner declares under penalty of perjury that the petition was placed in

the prison mailing system on October 1, 2021. Pet’n, ECF No. 1, at 15. Additionally, Petitioner

has submitted a receipt showing that it was mailed on October 15, 2021. See Pet’r Ex. 3, ECF No.

25-1. Based on this evidence, the Court finds that the petition was filed on October 1, 2021, the

day it was placed in the prison mail system. Even if it was placed in the prison mail system on

some later date, it must have been placed there by October 15, 2021, the date it was mailed.

Because the Court finds the petition was timely filed, the petition will not be dismissed as untimely.

B. Petitioner’s Ineffective Assistance of Counsel Claims

Both of Petitioner’s claims are based on his assertion that his trial counsel was ineffective.

The Sixth Amendment guarantees a criminal defendant the right to effective assistance of counsel.

Strickland v. Washington, 466 U.S. 668, 685-86 (1984). To show ineffective assistance of counsel,

a petitioner must show both that “[his] counsel’s performance was deficient” and that “the deficient

performance prejudiced [his] defense.” Id. at 687. To show deficient performance, Petitioner must

show “that counsel made errors so serious that counsel was not functioning as the ‘counsel’

guaranteed the defendant by the Sixth Amendment.” Id. “Judicial scrutiny of counsel’s

performance must be highly deferential,” and Petitioner bears a heavy burden in overcoming “a

strong presumption that counsel’s conduct falls within the wide range of reasonable professional

assistance.” Id. at 689 (citation and internal quotation marks omitted). To show prejudice,

Petitioner must show that “there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different. A reasonable probability is a

probability sufficient to undermine confidence in the outcome.” Id. at 694. “In assessing prejudice

under Strickland, the question is not whether a court can be certain counsel’s performance had no

effect on the outcome or whether it is possible a reasonable doubt might have been established if

counsel acted differently.” Harrington v. Richter, 562 U.S. 86, 111 (2011). “Instead, Strickland

asks whether it is ‘reasonably likely’ the result would have been different. Id.

“Although Strickland requires a showing of both deficient performance and prejudice, a

court deciding an ineffective assistance claim need not address both components of the inquiry if

the defendant makes an insufficient showing on one. If it is easier to dispose of an ineffectiveness

claim on grounds of lack of sufficient prejudice, . . . that course should be followed.” See

Whitehead v. Dormire, 340 F.3d 532, 537 (8th Cir. 2003) (internal quotation marks omitted). Here,

for both of Petitioner’s claims, the Missouri Court of Appeals rested its decision solely on

Petitioner’s failure to establish the prejudice prong of Strickland. Because the Court finds

Petitioner cannot establish the prejudice prong for either claim, the Court need not address the

deficient performance prong.

1. Ground One: Failure to Investigate and Present and Regarding Interview

Techniques Used in Child Advocacy Center Interviews and Investigation

In Ground One, Petitioner asserts ineffective assistance of trial counsel based on the failure

of trial counsel to investigate and present expert testimony regarding the interview techniques

utilized in the child advocacy center interviews of the alleged victim (by Ashton Eibel), the

investigation into the allegations of abuse, and the factors impacting disclosures of abuse.

Petitioner argues that trial counsel was ineffective for failing to call Dr. Rosalyn Schultz, or a

similar expert, to testify that the interviews of Victim did not reflect best practice guidelines and

protocols for the investigation of child sexual abuse cases and to provide information about the

quality of the investigation into Victim’s allegations of abuse. Petitioner argues that he was

prejudiced by the failure to present this evidence because Dr. Schultz’s testimony would have

created a reasonable doubt in the minds of the jurors and because without such testimony, there

was no evidence presented to contradict the prosecution’s key evidence.

The motion court sustained this claim, and the Missouri Court of Appeals reversed. Resp’t

Ex. I, at 19-27. The Missouri Court of Appeals summarized the hearing testimony relevant to this

claim as follows:

At the PCR hearing, Dr. Schultz and trial counsel both testified. Dr. Schultz

testified about her extensive training in forensic interviews of child victims of

sexual abuse. She testified that she had been contacted by Hook’s two prior

attorneys. In February 2014, the first attorney contacted and engaged her for

evaluation of the criminal investigation, and regarding the quality of Eibel’s

interviews with Victim and whether best practices were used. In May 2014, the

second attorney sought her available dates to testify at both the 491 hearing and the

trial. Trial counsel did not contact Dr. Schultz at all.

Had she been contacted, she would have been able to offer an opinion as to

the quality of the investigation and an opinion regarding whether best practice

guidelines were followed. Dr. Schultz testified that the best practice guidelines are

nationally developed by several organizations for forensic and investigative

interviews of child victims. These guidelines provide a framework for professional

interviewers, are well respected, and used throughout the United States. After

reviewing the records and interviews in Hook’s case, Dr. Schultz found significant

difficulties with the investigation and the forensic interviews of the Victim. She

stated such guidelines were not adequately followed, specifically: the timing and

circumstances were not flushed out; a family history of what was occurring at that

time of the alleged incident was not obtained; a medical history of the Victim was

not obtained; the interviewer did not follow up on the “owie” described by Victim

and potential causes of same (see, supra); and, Dr. Eden was not interviewed. With

regard to Eibel’s interviews with Victim, Dr. Schultz stated the best practices

guidelines were not followed. Dr. Schultz identified several specific ways in which

Eibel’s interviews failed to follow best practices, including her failure to follow up

on a bike accident as a potential source of Victim’s vaginal or anal injuries.

Trial counsel testified that when he represented Hook at trial he was in

private practice but represented Hook on a contract basis with the public defender’s

office. Trial counsel testified that he had been an attorney for 22 years. He stated

that he had been in private practice for 12 years and previously worked for the

public defender’s office where he held the position of district defender twice. Trial

counsel testified that he had handled 50 to 100 child sex cases and tried

approximately a dozen. He stated that he began representing Hook in October 2014,

and acknowledged that he would have received and reviewed the public defender’s

file. He stated that he knew from the file that Dr. Schultz had been hired by Hook’s

previous counsel. He stated that he was aware of the purpose for her but that he

“rejected that outright as a witness” without contacting her or knowing what

testimony she might offer. He stated that he did not know about the best practices

guidelines. He stated that he “made an assumption about the general stuff that she

would probably be testifying to, and I rejected that as I wasn’t going to use that

witness or that strategy.” When asked how often he had used a witness like Dr.

Schultz, trial counsel replied, “Never. I mean I’ve used experts but not in a child

sex case … to challenge whether or not the interviewing techniques were leading

or stuff like that. I’ve never used an expert for that purpose.” When asked if he

recalled that he challenged Eibel at trial about her interview with Victim, trial

counsel testified, “[I]f there were places I thought she was leading, I would

probably challenge her on it. I usually think if an interviewer is leading a kid that

it’s pretty obvious to most adults that’s what’s going on.”

Resp’t Ex. I, at 20-22 (footnote omitted).

Analyzing the merits of the claim, the Missouri Court of Appeals cited Strickland and

discussed its two-prong test. Id. at 7-8, 23-24. The court stated that it did not need to determine the

correctness of the motion court’s finding on the deficient performance prong of Strickland because

“[e]ven assuming that counsel’s decision not to call Dr. Schultz to testify constituted deficient

performance, the motion court clearly erred in concluding that presenting Dr. Schultz’s testimony

would have created a reasonable probability of a different outcome.” Id. at 24. The court offered

several reasons for its conclusion.

First, the court found that to the extent Dr. Schultz was criticizing the investigative

techniques used by law enforcement or others, those critiques did not “fall[] within the allegations

of ineffective assistance of counsel contained in [Petitioners] amended motion,” which alleged that

trial counsel was deficient for failing to “call an expert on children’s advocacy center interviews

and interviewing techniques for sexually abused children.” Id. at 24. It stated, “[t]he amended

motion does not allege that counsel was deficient for failing to call an expert to evaluate the

investigative techniques used by others, and any such claim is accordingly waived.” Id. (citing

Shockley v. Missouri, 579 S.W.3d 881, 899 (Mo. 2019)).

Second, the court found that although Dr. Schultz’s testimony evaluated the techniques

employed during the two forensic interviews conducted by Eibel, she “did not offer any testimony

to suggest that the circumstances surrounding the Victim’s other disclosures rendered those

statements unreliable.” Id. at 24. The court noted that “[e]vidence was presented at trial concerning

consistent disclosures Victim made to Grandmother, Hook, Dr. Eden at BCC, Foster Mother, and

Foster Father, all before her interview with Eibel.” Id. It found that “[n]othing in Dr. Schultz’s

testimony would have impacted the jury’s consideration of these multiple, and consistent,

disclosures.” Id. See also Resp’t Ex. A at 216-18; 220-21; 224–226); Resp’t Ex. B at 75-175.

Third, the court found that the probative value of Dr. Schultz’s testimony was limited by

the qualified nature of her opinions and her lack of direct experience conducting the type of

forensic interviews she was being asked to evaluate. Resp’t Ex. I, at 25. It noted that she

acknowledged on cross-examination that she was not testifying that Victim’s disclosures were

“contaminated” or rendered unreliable, but rather that the deficiencies she noted “could contribute

to problems that could contaminate the outcome of the case.” Id. See also Resp’t Ex. B at 154-56.

The court also noted that although Dr. Schultz was a qualified expert witness, it was significant

that she acknowledged that she had never worked in a child advocacy center and had never

conducted the type of forensic interviews she was being asked to evaluate in this case. Resp’t Ex.

I at 25. See also Resp’t Ex. B at 111-13, 156.

Fourth, the court found it significant that, “apart from generalized testimony concerning

best-practice guidelines for forensic interviews, Dr. Schultz offered only a limited number of

specific critiques of the interviews conducted by Eibel,” and it found that several of her criticisms

were highlighted by trial counsel in cross-examination and in closing argument. Resp’t Ex. I, at

25-26. It found that the “most prominent specific criticism Dr. Schultz offered” was that Eibel

failed to follow up when Victim referred to an accident in which she had injured her vaginal area

or anus, which could have presented an alternative explanation for any physical symptoms she was

experiencing, instead redirecting Victim back to talk about Petitioner’s actions. Id. at 25. The court

noted that trial counsel specifically highlighted this issue both in cross-examining Eibel and in

closing argument Id. See also Resp’t Ex. A, at 146-47, 245-46. It further noted that, as to Dr.

Schultz’s criticism that when Victim stated that Petitioner had placed his “pee pee” in her “pee

pee,” Eibel inappropriately reminded Victim that she had previously stated that he put his penis in

her “butt,” trial counsel specifically raised the same issue in cross-examining Eibel. Resp’t Ex. I,

at 25-26. See also Resp’t Ex. A, at 149. Finally, the court noted that trial counsel cross-examined

Eibel about, and/or highlighted in closing argument, several other concerning aspects of Victim’s

forensic interviews: that the Victim said her birthday was “right now” when it was weeks away;

that Victim said she would be entering “fourth grade,” which was plainly inaccurate; that Victim

said at the outset of her second forensic interview that she and Eibel had spoken “yesterday” when

it was in fact months earlier; that Victim seemed unusually eager in her second interview to talk

about Petitioner’s abuse and stated, “I’m supposed to tell” about specific actions by Petitioner; and

that Eibel failed to ask Victim about an incident in the shower, even though that was the initial

disclosure that triggered Grandmother’s concerns. Resp’t Ex. I, at 26. See also Resp’t Ex. A, at

141-44, 150, 241, 244, 246.

Fifth, the Missouri Court of Appeals found that Dr. Schultz’s “credibility would have been

seriously diminished by her inaccurate reliance on a supposed instance of bias by Eibel, which did

not in fact occur.” Resp’t Ex. I, at 26. The court cited testimony from Dr. Schultz indicating that

Eibel’s neutrality would be called into question by Eibel’s statement that one of the goals of

forensic interviews is “to collect information for the team members that’s hopefully corroborative

of the alleged allegation or information.” Id. It found that Eibel had not made such a statement,

but instead had testified that “[t]he goal of a forensic interview is to obtain as much information

as possible, to better clarify the allegations in a child abuse case.” Resp’t Ex. I, at 26.

Sixth, the Missouri Court of Appeals found that as to the other critiques Dr. Schultz offered,

Dr. Schultz did not explain how they affected the reliability of the interviews or how the problems,

in context, would have influenced Victim in this case. Resp’t Ex. I, at 27.

The Missouri Court of Appeals concluded that “even if counsel had called Dr. Schultz to

testify and impeach Eibel’s techniques, [Petitioner] failed to demonstrate a reasonable probability

that the outcome of trial would have been different.” Id.

As discussed above, a federal court may grant habeas relief on this claim only if the state

court’s adjudication of the claim resulted in a decision that was contrary to clearly established

federal law, involved an unreasonable application of clearly established federal law, or resulted in

a decision that was based on an unreasonable determination of the facts in light of the evidence

presented in the State court proceeding. 28 U.S.C. § 2254(d). It is not entirely clear which of these

bases Petitioner is relying on.3 The Court will consider each.

3 In the amended petition, filed through counsel, Petitioner does not discuss any of the three bases

on which a court may grant habeas relief under 28 U.S.C. § 2254(d). In the traverse, also filed

through counsel, Petitioner discusses at length the general standards that courts apply in assessing

all three bases for relief, but he does not expressly state which bases he relies on here, nor does he

expressly apply any of the standards to the facts here. He sets forth various asserted failings of the

Missouri Court of Appeals and concludes, “The findings of the Missouri Court of Appeals rested

upon an unreasonable application of fact and law under § 2254(d)(1) and (2).” Traverse, ECF No.

25, at 18.

i. Whether the decision on Ground One was “based on an

unreasonable determination of the facts”

The Court first considers whether the state court’s adjudication of Ground One “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)(2). “The question under AEDPA is

not whether a federal court believes the state court’s determination was incorrect but whether that

determination was unreasonable—a substantially higher threshold.” Schriro v. Landrigan, 550

U.S. 465, 473 (2007) (citing Williams v. Taylor, 529 U.S. 362, 410 (2000)). Although “the term

‘unreasonable’ is no doubt difficult to define, . . . a state-court factual determination is not

unreasonable merely because the federal habeas court would have reached a different conclusion

in the first instance.” Wood v. Allen, 558 U.S. 290, 301 (2010) (internal citation and quotation

marks omitted). “A state court decision is based on an unreasonable determination of the facts only

if the “court’s presumptively correct factual findings do not enjoy support in the record.” Bahtuoh

v. Smith, 855 F.3d 868, 873 (8th Cir. 2017) (internal quotation marks omitted). “AEDPA also

requires federal habeas courts to presume the correctness of state courts’ factual findings unless

applicants rebut this presumption with ‘clear and convincing evidence.’” Schriro, 550 U.S. at 473

(quoting § 2254(e)(1))

Petitioner makes three challenges to the factual findings on which the Missouri Court of

Appeals based its prejudice determination.4 First, Petitioner challenges the Missouri Court of

Appeals’ finding that although Dr. Schultz’s testimony evaluated the forensic interviews

conducted by Eibel, “Dr. Schultz did not offer any testimony to suggest that the circumstances

4 Petitioner does not challenge the other factual determinations made by the Missouri Court of

Appeals as to this claim. Those factual determinations appear to be reasonably supported by the

record.

surrounding the Victim’s other disclosures [those made to Grandmother, Petitioner, Dr. Eden,

Foster Mother, and Foster Father before the interviews with Eibel] rendered those statements

unreliable.” Resp’t Ex. I, at 24. For this challenge, Petitioner points to (1) Dr. Schultz’s testimony

noting that Grandmother was “appalled” and “very upset” by the initial disclosure of abuse and

that Grandmother should have been interviewed about the “timing and circumstances” of the initial

disclosure, Resp’t Ex. B, at 117-19, 132; and (2) Dr. Schultz’s testimony noting that Victim’s

parents were participating in marital counseling in early 2013 and that areas not explored included

the types of conflicts going on at the time, what was going on with the family and parents, and

Victim’s relationship with her parents, id. at 120. After review of the cited testimony and the record

as a whole, the Court finds the Missouri Court of Appeals’ determination reasonable. Although

the cited testimony suggests that Dr. Schultz believed the circumstances surrounding Victim’s

early disclosures should have been further explored, Dr. Schultz did not explain how the absence

of exploration of Grandmother’s moods, Victim’s parents’ marital counseling, or the family’s

relationships and conflicts undermined the reliability of the Victim’s multiple and consistent

disclosures of abuse to Grandmother and other individuals. It was not unreasonable for the state

court to determine, based on the evidence presented in the state court proceedings, that Dr.

Schultz’s testimony would not have undermined those disclosures.

Second, Petitioner appears to challenge the Missouri Court of Appeals’ determination that

Dr. Schultz had never worked in a child advocacy center and had never conducted the type of

forensic interviews she was asked to evaluate in this case. This challenge is without merit. As

Petitioner points out, Dr. Schultz testified to extensive experience and education in the area of

investigation of child sexual abuse cases, including experience conducting clinical and forensic

interviews with children and adolescents in child sexual abuse cases. Resp’t Ex. B, at 77-90, 169-

70. However, consistent with the state court’s finding, Dr. Schultz clearly testified that she has

never done a forensic interview of a child victim in a criminal sex abuse case and had never worked

for a child advocacy center. Id. at 111-12.

Third, Petitioner challenges the Missouri Court of Appeals’ determination that Dr.

Schultz’s “credibility would have been seriously diminished by her inaccurate reliance on a

supposed instance of bias by Eibel, which did not in fact occur.” Resp’t Ex. I, at 26. In making this

determination, the Missouri Court of Appeals stated:

In her testimony at the PCR Hearing, Dr. Schultz stated that, in describing the goals

of a forensic interview, Eibel had stated “that one of the goals was to . . . corroborate

the allegation,” which Dr. Schultz considered to be inconsistent with the neutrality

of a forensic interviewer. Hook’s post-conviction counsel then purported to quote

from page 131 of the trial transcript, where Eibel supposedly testified that one of

the goals of the interview was “to collect information for the team members that’s

hopefully corroborative of the alleged allegation or information.” Id. Dr. Schultz

agreed that this testimony was evidence of bias. The problem is, however, that this

is not what Eibel actually said. Instead, on page 131 of the trial transcript. Eibel

testified:

A forensic interview is a structured conversation with a child,

intended to elicit detailed information about an event the child may

have witnessed or experienced. The goal of a forensic interview is

to obtain as much information as possible, to better clarify the

allegations in a child abuse case.

Id. at 26 (emphasis in Missouri Court of Appeals’ decision).

The Court agrees with Petitioner that the state court record refutes the Missouri Court of

Appeals’ factual determination on this point, at least in part. The following exchange occurred at

the evidentiary hearing between Petitioner’s counsel and Dr. Schultz:

Q. If the transcript reflects on page 131 that in response to what the goals were

of a CAC interview, her response was “To collect information for the team

members that’s hopefully corroborative of the alleged allegation or

information.” Would that be something that you would consider being

neutral in regard to the interview?

A. No, I would not.

Resp’t Ex. B, at 144-45. The Missouri Court of Appeals, having been directed to “page 131” of

“the transcript” by Petitioner’s counsel at the evidentiary hearing, reasonably consulted the only

transcript that apparently contained a page 131 at the time of the questioning—the trial transcript.

It then correctly found that “page 131” did not contain the quoted testimony, and instead contained

different testimony from Eibel about the goal of a forensic interview. Resp’t Ex. A, at 131.

However, as Petitioner now points out, the state court record does contain the quoted testimony

from Eibel, just in a different place. On October 15, 2013, Eibel testified at a hearing in a collateral

juvenile proceeding in the Circuit Court of Randolph County, Missouri, Case No. 13RA-JU00053.

Pet’r Ex. 4, ECF No. 25-2. The transcript containing this testimony, which is 48 pages long, was

admitted into evidence as Exhibit 18 during the evidentiary hearing before the motion court. See

Resp’t Ex. B, at 20. At page 13 of that transcript, Eibel testified as follows:

Q. What is the advantage of having the child undergo a forensic interview,

versus being questioned by those other professionals?

A. The Rainbow House Advocacy Center is a child friendly, neutral setting to

talk with children. And also, I’m an unbiased person conducting the

interview. But the goal is to collect information for the team members

that’s hopefully corroborative information.

Pet’r Ex. 4, at 13 (emphasis added). Based this evidence, to the extent that the Missouri Court of

Appeals found that Eibel never testified that the goal of a forensic interview is “to collect

information for the team members that’s hopefully corroborative of the alleged allegation or

information,” such that Dr. Schultz’s credibility would have been undermined by Dr. Schultz’s

belief that such testimony existed, Petitioner has presented clear and convincing evidence to the

contrary.

Even where a specific factual finding has been shown to be incorrect, “it does not

necessarily follow that the state court adjudication was based on an unreasonable determination of

facts because subsection (d)(2) instructs federal courts to evaluate the reasonableness of the state

court decision ‘in light of the evidence presented in the State court proceeding.’” Collier v. Norris,

485 F.3d 415, 423 (8th Cir. 2007) (quoting 28 U.S.C. § 2254(d)(2)). Accord Donelson v. Steele,

16 F.4th 559, 569 (8th Cir. 2021). “[I]t is not sufficient to show the state court’s decision merely

included an unreasonable factual determination. Instead, by its terms § 2254(d)(2) only empowers

federal courts to grant relief if the state court’s decision was based on an unreasonable

determination of the facts.” Id. (quoting Smith v. Aldridge, 904 F.3d 874, 880 (10th Cir. 2018)).

See also Lambert v. Blackwell, 387 F.3d 210, 235-36 (3d Cir. 2004) (“[E]ven if a state court’s

individual factual determinations are overturned, what factual findings remain to support the state

court decision must still be weighed under the overarching standard of section 2254(d)(2)”).

In determining whether a state court decision that includes an erroneous factual

determination was “based on” an unreasonable determination of the facts, the Court may consider

factors including how significant the erroneous factual determination was to the decision, whether

the decision was supported by other facts in the record, whether the facts that support the

determination are independent of the erroneous factual determination, and whether the state court’s

reasoning and conclusion would have been the same absent the factual error. See Donelson, 16

F.4th at 569-70 (finding state court decision was “based on” an unreasonable determination of the

facts where one of the three factual bases for the decision was unreasonable; reasoning that “the

‘three factual bases’ for the [state] court’s decision were not separate and independent from one

another,” that one of the technically accurate facts appeared to be “completely dependent on” the

unreasonable determination of fact, and that it was “hard to imagine that the state court’s reasoning

and conclusion would have been the same” had it not made the unreasonable factual

determination); Collier, 485 F.3d at 422-24 (holding that despite two erroneous factual

determinations by the state court (referring to multiple witnesses having seen a shooting where

only one witness had seen the shooting and attributing one witness’s testimony to a witness who

did not testify), the petitioner did not show that the state court decision was based on an

unreasonable determination of the facts because the other evidence in the state court record

supported the state court’s conclusion); Kachina v. Minnesota, No. CIV 06-3661 ADM/JJG, 2008

WL 2510156, at *15–16 (D. Minn. June 19, 2008) (finding state court’s erroneous statement that

that a witness had identified the defendant at trial “was not a significant basis for its conclusion

that [the witness’s] show-up identification was reliable”; noting that the state court had emphasized

the “totality of the circumstances” and “additional facts supporting” the conclusion); Cox v. Norris,

No. 5:02CV00234JWC, 2005 WL 1922634, at *12 (E.D. Ark. July 19, 2005) (holding that a state

court decision was not based on an unreasonable determination of the facts where state court’s

error did not “not materially undermine the [state court’s] determination that the evidence was

sufficient to support Petitioner’s involvement in the crime”), aff’d, 177 F. App’x 516 (8th Cir.

2006). See also Frederick v. Quick, 79 F.4th 1090, 1104 (10th Cir. 2023) (“The state court’s

decision is not ‘based on’ a finding if (1) it made the finding in addressing only subsidiary issues,

or (2) other reasons supported the court’s decision.”) (internal citation and quotation marks

omitted); O’Quinn v. Spiller, 806 F.3d 974, 978 (7th Cir. 2015) (state court decision was not “based

on” unreasonable determination of the facts where it could not “reasonably be argued that th[e]

modest factual mistake had any meaningful effect on the state court’s decision”).

Here, the Court finds that despite the above-described erroneous factual determination, the

Missouri Court of Appeals’ determination that Petitioner suffered no prejudice from the failure to

consult or call Dr. Schultz was not “based on an unreasonable determination of the facts in light

of the evidence presented in the State court proceeding.” As discussed at length above, the state

court offered numerous factual bases for its determination of no prejudice, all of which were

completely independent of the erroneous factual determination at issue. These included the state

court’s reasonable finding that Dr. Schultz’s testimony did not undermine the reliability of the

consistent disclosures that Victim made to several other people before the possibly problematic

interviews with Ms. Eibel, the state court’s reasonable finding that several other facts would have

limited the probative value of Dr. Schultz testimony (including the qualified nature of her

testimony, the fact that she had never conducted forensic interviews of child sexual abuse victims,

and the fact that she had never worked in a child advocacy center), and the state court’s reasonable

finding that many of the key criticisms of Eibel’s interviews raised by Dr. Schultz were raised by

Petitioner’s counsel during cross examination and/or closing argument. The Court finds that the

erroneous factual determination was of minimal importance to the determination and that the state

court’s determination would have been the same absent the erroneous factual finding.

ii. Whether the decision on Ground One was “contrary” to clearly

established federal law

As set forth above, a state court decision is “contrary to” clearly established federal law “if

the state court applies a rule that contradicts the governing law set forth in [the Supreme Court’s]

cases” or “if the state court confronts a set of facts that are materially indistinguishable from a

decision of [the Supreme] Court and nevertheless arrives at a result different from [the Supreme

Court’s] precedent.” Williams, 529 U.S. at 405-06. Petitioner does not appear to argue that the

Missouri Court of Appeals’ decision on Ground One was “contrary to” clearly established federal

law, as established by the Supreme Court of the United States, nor does the Court find that it was.

Here, the Missouri Court of Appeals properly identified and articulated the rule set forth in

Strickland and applied it to Petitioner’s claim, and Petitioner does not argue that it applied any rule

contradicting Strickland or any other governing law set forth by the Supreme Court. Petitioner

does not direct the Court to any decision of the Supreme Court that confronted materially

indistinguishable facts but arrived at a different result. Thus, Petitioner is not entitled to relief on

this basis.

iii. Whether the decision on Ground One involved an “unreasonable

application” of clearly established federal law

A state court decision involves an “unreasonable application” of clearly established federal

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

particular prisoner’s case.” Williams, 529 U.S. at 407-08; see also Bell, 535 U.S. at 694. To meet

the “unreasonable application” standard, “a prisoner must show far more than that the state court’s

decision was ‘merely wrong’ or ‘even clear error.’” Shinn v. Kayer, 592 U.S. 111, 118 (2020)

(quoting Virginia v. LeBlanc, 582 U.S. 91, 94 (2017) (per curiam)). “The prisoner must show that

the state court’s decision is so obviously wrong that its error lies ‘beyond any possibility for

fairminded disagreement.’” Id. (quoting Richter, 562 U.S. at 103). “A state court’s determination

that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could

disagree’ on the correctness of the state court’s decision.” Richter, 562 U.S. at 101 (citing

Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). See also Lockyer v. Andrade, 538 U.S. 63,

75 (2003) (“Under § 2254(d)(1)’s ‘unreasonable application’ clause . . . a federal habeas court may

not issue the writ simply because that court concludes in its independent judgment that the relevant

state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that

application must be objectively unreasonable.”) (internal citation and quotation marks omitted).

“[E]valuating whether a rule application was unreasonable requires considering the rule’s

specificity. The more general the rule, the more leeway courts have in reaching outcomes in case-

by-case determinations.” Richter, 562 U.S. at 101 (quoting Yarborough, 541 U.S. at 664).

“[B]ecause the Strickland standard is a general standard, a state court has even more latitude to

reasonably determine that a defendant has not satisfied that standard.” Shinn, 592 U.S. at 119

(quoting Knowles v. Mirzayance, 556 U.S. 111, 123 (2009)).

As discussed above, “in assessing prejudice under Strickland, the question is not whether

a court can be certain counsel’s performance had no effect on the outcome or whether it is possible

a reasonable doubt might have been established if counsel acted differently.” Richter, 562 U.S. at

111. “Instead, Strickland asks whether it is ‘reasonably likely’ the result would have been different.

Id. In assessing prejudice from failure to call a witness, relevant factors include “the credibility of

all witnesses, including the likely impeachment of the uncalled defense witnesses”; “the interplay

of the uncalled witnesses with the actual defense witnesses called”; and “the strength of the

evidence actually presented by the prosecution.” Woods v. Norman, 825 F.3d 390, 395-96 (8th Cir.

2016) (internal quotation marks omitted).

Petitioner argues that there is reasonable probability that the outcome of Petitioner’s trial

would have been different had Dr. Schultz testified. Petitioner emphasizes Dr. Schultz’s extensive

experience and education and the fact that the motion court (which was in the best position to

evaluate her credibility) found her testimony “impressive.” See ECF No. 31-3, at 16. Petitioner

also notes that Petitioner’s trial counsel called no other witnesses in his defense, and that trial

counsel’s defense strategy was to undermine the credibility of the State’s witnesses—a strategy

that would have been bolstered by Dr. Schultz. Petitioner also argues that Dr. Schultz’s testimony

was critical because the prosecution’s case “rested solely upon” Victim’s allegations and because

trial counsel could not replicate the effect of Dr. Schultz’s expert testimony merely by cross-

examining Eibel. See Amd. Pet., ECF No. 9, at 35-36.

The Court acknowledges that the evidence cited by Petitioner could have supported a

finding of Strickland prejudice. However, “even a strong case for relief does not mean the state

court’s contrary conclusion was unreasonable.” Richter, 562 U.S. at 101. Applying the deferential

standards the Court must apply for purposes of habeas review, the Court does not find the Missouri

Court of Appeals’ application of Strickland was unreasonable. The state court’s decision was

supported by several good reasons that have support in the record. The court reasonably considered

that the value of Dr. Schultz’s testimony was limited by the qualified nature of her opinions, the

fact that she had never worked in a child advocacy center, and the fact that she had never conducted

the type of forensic interviews she was asked to evaluate. The court also reasonably considered

that even if Dr. Schultz’s testimony might have impacted the jury’s consideration of Victim’s

interviews with Eibel, it would not have impacted the jury’s consideration of a significant body of

strong evidence against Petitioner—Victim’s consistent disclosures of abuse to several other

individuals before her interviews with Eibel. The court also reasonably considered that any

prejudice from failing to call Dr. Schultz was mitigated by the fact that most of the significant

issues Dr. Schultz would have raised with regard to Eibel’s interview techniques were highlighted

by trial counsel during cross-examination and/or closing argument. In light of these considerations,

the Missouri Court of Appeals’ decision—that there was no reasonable probability that the

outcome of Petitioner’s trial would have been different had Dr. Schultz testified, and thus no

Strickland prejudice—was not “so obviously wrong that its error lies ‘beyond any possibility for

fairminded disagreement.” See Shinn, 592 U.S. at 118 (quotation marks omitted). See also Taylor

v. Kelley, 825 F.3d 466, 470 (8th Cir. 2016) (habeas relief is not warranted “if fairminded jurists

could agree with the state court’s decision regarding prejudice”) .

For all of the above reasons, Petitioner has not shown that the Missouri Court of Appeals’

finding that he was not prejudiced under Strickland by his counsel’s failure to consult or call Dr.

Schultz was contrary to clearly established federal law, was an unreasonable determination of

clearly established federal law, or was based on an unreasonable determination of the facts.

Because Petitioner cannot establish the prejudice prong of Strickland, he cannot prevail on his

ineffective assistance of counsel claim, and the Court need not address the deficient performance

prong of Strickland. Ground One will be denied.

2. Ground Two: Failure to Obtain and Present Certified Copies of Victim’s

Medical Records from BCC

In Ground Two, Petitioner argues that his trial counsel failed to obtain and present certified

copies of Victim’s July 12, 2013, medical records from BCC of the first sexual assault examination

performed on the alleged victim, performed by Dr. Andrea Eden. This examination showed normal

physical findings. Petitioner argues that if counsel had obtained these records, counsel could have

impeached the testimony of Ms. Walters, who conducted a SAFE examination three days later that

contained abnormal physical findings, and the testimony of Dr. Holly Monroe, who performed a

third physical examination two months later and who testified that her examination was normal

but that the best time to find injuries is as soon as possible after the assault, because children heal

quickly in that area of the body.

The motion court sustained this claim, and the Missouri Court of Appeals reversed. Resp’t

Ex. I, at 27-31. The Missouri Court of Appeals summarized the evidence relevant to this claim as

follows:

At the PCR hearing, trial counsel testified that he was aware of the BCC

records before trial but not its significance, stating, “I just missed it.” He admitted

the records were part of the file when it was given to him. Trial counsel stated that

he did not request a business records certification but that he should have done so.

Trial counsel testified that upon realizing mid-trial that he had the BCC records in

his file, he wanted to get them into evidence, and attempted to do so by trying to

cross-examine Dr. Monroe with the records but the State’s objection to his efforts

was sustained.

The BCC records reflect, in pertinent part, that on July 12, 2013,

Grandmother brought Victim in for alleged sexual abuse. It lists as chief

complaint/reason for visit:

Maternal grandma present who states that pt told her today

that her dad was touching her private parts. The incident occurred

on 7/10. Pt states she was taking a shower with her dad and he

touched her vaginally. Pt then stated without prompting from the

grandma that her dad took her to the living room and put his “pee

pee area” in her butt and her “pee-pee area.” This caused her

discomfort at the time but she denies pain currently.

The BCC records indicated no physical injuries were found.

Resp’t Ex. I, at 28. The Missouri Court of Appeals also discussed the motion court’s findings that

the BCC examination occurred on the same day Victim disclosed the abuse to Grandmother, that

Dr. Eden at BCC found the vaginal and rectal areas to be normal, and that Ms. Walters’

examination revealing abnormal findings was done at least three days after Petitioner no longer

had access to Victim. Id. at 28-29.

In reversing the decision of the motion court, the Missouri Court of Appeals stated, “even

if counsel’s performance was deficient in this regard, the motion court clearly erred in finding that

Hook had established Strickland prejudice.” Resp’t Ex. I, at 30. The Missouri Court of Appeals

offered several bases for its conclusion that Petitioner was not prejudiced by his counsel’s failure

to obtain and present the BCC records.

First, the Missouri Court of Appeals found that the BCC records themselves contained

documentation unfavorable to Petitioner: (1) a note indicating that Victim “states she was taking

a shower with her dad and he touched her vaginally”, and (2) a note indicating that Victim “then

stated without prompting from the grandma that her dad took her to the living room and put his

‘pee pee area’ in her butt and her ‘pee pee area.’” Resp’t Ex. I, at 30. The court stated that “the

report documents an incident of inappropriate touching in the shower (an incident not documented

in Victim’s forensic interview), as well as Victim’s unprompted disclosures of anal and vaginal

intercourse.” Id. It found that the “additional, early, documented disclosure would have provided

important additional corroboration of Victim’s allegations, if the BCC records had been introduced

in evidence.” Id.

Second, the state court found that Victim was not entirely asymptomatic at the BCC visit

and had abdominal pain, vaginal itching and discharge, and pain on urination. Id. The state court

determined that “[p]articularly in the context of a young child who may not articulate concerning

symptoms they are experiencing, we believe a jury could easily find that the symptoms Victim

reported during the BCC visit were generally consistent with those identified in her first SAFE

examination.” Id.

Third, the court noted that the BCC examination occurred at a “walk-in urgent care clinic,”

and it found that the jury “could reasonably give diminished weight to this examination, given that

it was not conducted by individuals specifically trained to address sexual abuse allegations.” Id.

31. The Court also found it significant that the doctor who conducted the examination was not

called to testify at the post-conviction evidentiary hearing, so it was unclear how extensive her

examination was or how much weight her failure to note physical findings should be given. Id.

Fourth, the court found it significant that the first SAFE examination on July 15, 2013, did

not conclusively identify physical indications of abuse; instead, the nurse who conducted the

examination testified that her physical findings were “inconclusive” for abuse. Id. The court also

noted that although Dr. Monroe testified that Victim’s observed injuries were not the result of

accident, she likewise did not definitively opine that those injuries had been caused by sexual

abuse. Id.

The Missouri Court of Appeals concluded that there was no reasonable probability that but

for trial counsel’s failure to offer the BCC records into evidence, the outcome of the trial would

have been different.

As with Ground One, Petitioner does not specify which of the three possible bases for

habeas relief he relies on; the Court will consider each.

i. Whether the decision was on Ground Two was “based on an

unreasonable determination of the facts”

Petitioner makes two challenges to the state court’s factual determinations. First, Petitioner

challenges the state court’s finding that the BCC records contained additional evidence of

disclosures that would have corroborated Victim’s allegations if introduced at trial. Petitioner

argues that the disclosure of vaginal touching in the shower was not mentioned in Victim’s later

disclosures and thus did not “corroborate” the later disclosures. Petitioner also argues that it is not

certain that the evidence of the vaginal touching in the shower would have been admissible,

because it related to a crime other than the one charged. The Court finds the Missouri Court of

Appeals’ factual determination reasonable and supported by the record. Even assuming, arguendo,

that the report of the vaginal touching in the shower did not corroborate Victim’s other allegations

and/or would have been inadmissible, the Missouri Court of Appeals’ finding that these records

contained disclosures that would have corroborated Victim’s allegations at trial is still supported

by the notation indicating that Victim “stated without prompting from the grandma that her dad

took her to the living room and put his ‘pee pee area’ in her butt and her ‘pee pee area.’” That

disclosure is clearly corroborative of Victim’s allegations.

Second, Petitioner argues that the Missouri Court of Appeals “erroneously found that the

findings of Dr. Eden were not inconsistent with the findings of Ms. Walters”,” emphasizing the

differences in the two providers’ physical findings. Traverse, ECF No. 25, at 20-21. However, this

argument is misplaced because the Missouri Court of Appeals did not state that the providers’

physical findings were consistent; it addressed only the consistency of the symptoms Victim

reported to the providers.5 The statements the Missouri Court of Appeals made about the

providers’ physical findings are reasonable and supported by the record. The court stated, “[T]he

SAFE examinations did not conclusively identify physical indications of abuse. Walters, the nurse

who conducted the SAFE examination on July 15, 2013, testified that her physical findings were

‘inconclusive’ for abuse. Although Dr. Monroe testified that Victim’s observed injuries were not

the result of accident, she likewise did not definitively opine that those injuries had been caused

by sexual abuse.” Id. at 31. These statements are supported by the testimony these providers gave

at trial. See Resp’t Ex. A, at 186-87; id. at 208-210.

For the above reasons, Petitioner has not shown that the Missouri Court of Appeals’

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

in the state court proceeding.

ii. Whether the decision on Ground Two was “contrary” to clearly

established federal law

Petitioner offers no basis for a finding that the Missouri Court of Appeals’ decision on

Ground Two was “contrary to” clearly established federal law, as established by the Supreme

Court of the United States, nor does the Court find that it was. The Missouri Court of Appeals

properly identified and articulated the rule set forth in Strickland and applied it to Petitioner’s

claim. Thus, Petitioner is not entitled to relief on this basis.

iii. Whether the decision on Ground Two involved an “unreasonable

application” of clearly established federal law

The Court next considers whether the Missouri Court of Appeals’ decision involved an

unreasonable application of Strickland. As discussed above, to meet the “unreasonable

5 Petitioner does not challenge the Missouri Court of Appeals’ findings related to the symptoms

Victim reported.

application” standard, a “ prisoner must show that the state court’s decision is so obviously wrong

that its error lies ‘beyond any possibility for fairminded disagreement.’” Shinn, 592 U.S. at 118

(2020) (quoting Richter, 562 U.S. at 103). Additionally, “[b]ecause the Strickland standard is a

general standard, a state court has even more latitude to reasonably determine that a defendant has

not satisfied that standard.” Shinn, 592 U.S. at 119 (quoting Knowles, 556 U.S. at 123).

Petitioner argues that there is a reasonable probability that the outcome of Petitioner’s trial

would have been different had trial counsel obtained and used certified copies of the BCC medical

records. Petitioner argues that with these records, trial counsel would have been able to impeach

Ms. Walters’ testimony that Victim had abnormal physical findings with an examination

performed three days earlier (but still after the alleged abuse) that contained no abnormal physical

findings. Petitioner also argues that the absence of findings in the BCC examination would have

bolstered Petitioner’s defense that there were alternative explanations for any abnormal findings

in Ms. Walters’ examination. Petitioner further argues that with these records, Petitioner could

have cross-examined Dr. Monroe about how an early, normal examination would have impacted

her opinion that even though Victim’s examination was normal two months after the abuse, sexual

abuse could still have occurred because children heal quickly. Finally, Petitioner argues that with

these records, Petitioner could have seized on Dr. Monroe’s statement that the best time to find

evidence of abuse is as soon as possible after an alleged assault and could have highlighted the

lack of physical findings at the time closest to when the assault was alleged to have happened.

The Court acknowledges that the evidence and argument offered by Petitioner could have

supported a finding of Strickland prejudice from trial counsel’s failure to obtain the BCC records.

However, the Court cannot say that the Missouri Court of Appeals’ contrary conclusion was

unreasonable. The state court offered several good reasons for its conclusion, supported by the

record, including that the BCC records could themselves have been harmful to Petitioner’s case

by providing additional corroborating evidence that victim disclosed abuse without prompting and

well before the allegedly problematic interviews with Eibel; that the examination findings offered

at trial did not conclusively show physical abuse (lessening the importance of those findings and

thus lessening the impact that impeaching those findings with the BCC records might have had on

the outcome of the trial); and that the jury may well have given diminished weight to normal

examination findings made by a an urgent care doctor with no special training in sexual abuse

examinations. In light of these considerations, it was not unreasonable for the Missouri Court of

Appeals to determine that there was no reasonable probability that, but for trial counsel’s error,

the result of the trial would have been different.

For all of the above reasons, Petitioner has not shown that the Missouri Court of Appeals’

finding that he was not prejudiced under Strickland by his counsel’s failure to obtain the BCC

records was contrary to clearly established federal law, was an unreasonable determination of

clearly established federal law, or was based on an unreasonable determination of the facts.

Because Petitioner cannot establish the prejudice prong of Strickland, he cannot prevail on his

ineffective assistance of counsel claim, and the Court need not address the deficient performance

prong of Strickland. Ground Two will be denied.

IV. CONCLUSION

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

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

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

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

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

“A substantial showing is a showing that issues are debatable among reasonable jurists, a court

could resolve the issues differently, or the issues deserve further proceedings.” Cox v. Norris, 133

F.3d 565, 569 (8th Cir. 1997) (citation omitted). The Court finds that Petitioner has not made a

substantial showing of the denial of a constitutional right, so the Court will not issue a certificate

of appealability. Accordingly,

IT IS HEREBY ORDERED that Petitioner’s Amended petition for writ of habeas corpus

pursuant to 28 U.S.C. § 2254 (ECF No. 9) is DENIED.

IT IS FURTHER ORDERED that this case is DISMISSED.

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

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

28 US.C. § 2253.

ej 0

SHIRLEY PADMORE MENSAH

UNITED STATES MAGISTRATE JUDGE

Dated this 25th day of March, 2025.

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