The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DENNIS MICHAEL CONLIN, JR., )
)
Petitioner, )
)
v. ) Case No. 4:21-cv-01287-MTS
)
TERI LAWSON, )
)
Respondent. )
MEMORANDUM AND ORDER
This matter is before the Court on Petitioner Dennis Michael Conlin, Jr.’s Petition under
28 U.S.C. § 2254 for writ of habeas corpus. For the following reasons it is denied.
I. Procedural History
In March of 2016, Dennis Michael Conlin, Jr. (“Petitioner”) was convicted after a bench
trial of attempted kidnapping, attempted first-degree sexual abuse, and third-degree assault. On
May 23, 2016, Petitioner was sentenced to concurrent terms of seven years for attempted
kidnapping, four years for attempted first-degree sexual abuse, and one year for third-degree
assault. On December 11, 2017, the Missouri Court of Appeals for the Eastern District (“state
court”) affirmed Petitioner’s conviction and sentencing. State v. Conlin, 532 S.W.3d 705 (Mo.
App. E.D. 2017). Petitioner then filed a motion for post-conviction relief under Supreme Court
of Missouri Rule 29.15, alleging that Petitioner’s trial counsel was ineffective for failing to
litigate a motion to suppress statements made to detectives because he had not received Miranda1
1 Miranda v. Arizona, 384 U.S. 436 (1966).
warnings. After an evidentiary hearing, the motion court denied Petitioner’s Rule 29.15 motion.
The state court affirmed the denial of Petitioner’s motion for post-conviction relief. Conlin
v. State, 609 S.W.3d 103 (Mo. App. E.D. 2020). On October 27, 2021, Petitioner filed this action
for habeas relief. Doc. [1]. Petitioner was released from Farmington Correctional Center.
However, he is currently serving a lifetime federal probation sentence and is on location
monitoring. Doc. [14] at 1.2
II. Factual Background
On April 30, 2015, Victim was jogging on City Centre Trail in St. Peters, Missouri, when
Petitioner rode his bicycle past her “a little too close for comfort” twice within the span of a few
minutes. Doc. [9-13] at 2. Victim was able to see Petitioner’s appearance and identify his
clothes– a gray cut-off t-shirt, black shorts, a red hat, and reflective sunglasses. Minutes later,
Petitioner ran up behind Victim, put his hands on her lower back, and pushed her, causing her to
fall over. Victim screamed, but no one came to assist her. Victim allowed Petitioner to help her
up because he was much larger than her and she did not believe she could run quickly enough
to escape him. Petitioner then gave her an “unwanted” hug. Doc. [9-8] at 3. Victim took a step
back and Petitioner apologized, saying “I have a problem, I’m going to get help, just promise
me you’re not going to tell anybody.” Doc. [9-13] at 2. Petitioner then attempted to give Victim
another hug. When Victim put her hands in front of her, indicating she did not want another
hug, Petitioner turned and ran away. Victim found a park ranger and reported the incident. She
testified that she felt “scared” and “terrified” by Petitioner’s actions. Doc [9-8] at 4.
2 “For a habeas petition to continue to present a live controversy after the petitioner’s release” from custody, “there
must be some remaining ‘collateral consequence’ that may be redressed by success on the petition.” See Abdala v.
I.N.S., 488 F.3d 1061, 1064 (9th Cir. 2007). Petitioner has identified his lifetime federal probation sentence and
location monitoring as collateral consequences that render his Petition a live controversy.
The park ranger contacted the police and Detective Christopher Scott Ruder (“Detective
Ruder”) interviewed Victim, obtaining a description of Petitioner. Victim identified Petitioner
in the second of two photographic lineups Detective Ruder created. Detective Ruder and another
detective (“the detectives”) then interviewed Petitioner at his residence. When first asked about
where he had been the previous day, Petitioner denied being at the trail. When asked if he had a
bicycle, he showed the detectives the bicycles he had and claimed he had not used them in years.
Petitioner also let the detectives see his bedroom. They observed a red hat and sunglasses in the
room, similar to those described by Victim. When asked again about his possible involvement
in the incident, Petitioner admitted he was the one who pushed Victim. As the conversation
continued, Petitioner told the detectives he could tell that Victim was scared, he knew his urge
to push her down was not normal, he was “stressed” leading up to the incident, and he had
prior issues revolving around sex. He also admitted he had exposed himself to people in the past
to shock them.
Detective Ruder testified at the bench trial that Petitioner did not ask for an attorney at
any point in their conversation. He testified that Petitioner was not confined to a particular room
and that Petitioner moved throughout the home in the course of their conversation. Detective
Ruder also testified that they expressed to Petitioner multiple times that the conversation was
voluntary. The detectives arrested Petitioner after their conversation and Petitioner consented to
a search of his bedroom. The detectives seized the hat and sunglasses as well as two
pornographic DVDs, a thumb drive, and a journal written by Petitioner in which he had
written,“I’m just so focused on sex.” Doc. [9-13] at 3. Petitioner was found guilty of all charges
at a bench trial.
III. Legal Standard
a. Claims Reviewed on the Merits
When a claim has been adjudicated on the merits in state court proceedings, habeas relief
is permissible under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),
though such relief is “limited and deferential.” Lonholt v. Iowa, 327 F.3d 748, 751 (8th Cir.
2003). Under AEDPA, § 2254(d), habeas relief is only permissible if the state court’s
determination:
(1) Resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court of the United States; or
(2) Resulted in a decision that was based on an unreasonable determination of the
facts in light of the evidence presented in the State court proceeding.
§ 2254(d)(1)–(2).
A state court’s decision is “contrary to” clearly established Federal law if “it applies a
rule that contradicts the governing law set forth in [the Supreme Court’s] cases, or if it confronts
a set of facts that is materially indistinguishable from a decision of the [Supreme Court] but
reaches a different result.” Brown v. Payton, 544 U.S. 133, 141 (2005).
A decision involves an “unreasonable application” of clearly established law if “the state
court applies [the Supreme Court’s] precedents to the facts in an objectively unreasonable
manner,” id. at 141, or “if the state court unreasonably extends a legal principle from [Supreme
Court] precedent to a new context where it should not apply or unreasonably refuses to extend
that principle to a new context where it should apply.” Williams v. Taylor, 529 U.S. 362, 407
(2000).
b. Ineffective Assistance of Counsel Claims
To prevail on his ineffective assistance of counsel claims, Petitioner must show that his
attorney’s performance fell below an objective standard of reasonableness and that he was
prejudiced thereby. Strickland v. Washington, 466 U.S. 668, 688 (1984). With respect to the first
Strickland prong, there is a strong presumption that counsel’s conduct falls within the wide range
of professionally reasonable assistance. Id. at 689. To establish the “prejudice” prong, the movant
must show “that there is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Id. at 694. “Merely showing a conceivable
effect is not enough; a reasonable probability is one sufficient to undermine confidence in the
outcome.” Paulson v. Newton Corr. Facility, 773 F.3d 901, 904 (8th Cir. 2014) (citation omitted).
“Taken together, AEDPA and Strickland establish a ‘doubly deferential standard’ of
review.” Williams v. Roper, 695 F.3d 825, 831 (8th Cir. 2012) (quoting Cullen v. Pinholster, 563
U.S. 170, 202 (2011)). First, under Strickland, the state court must make a predictive judgment
about the effect of the alleged deficiencies of counsel on the outcome of the trial, focusing on
whether it is “reasonably likely” that the result would have been different absent the errors.
Strickland, 466 U.S. at 696. Under AEDPA, federal courts must then give substantial deference
to the state court’s predictive judgment. So long as the state court’s decision was not “contrary
to” clearly established law, the remaining question under the “unreasonable application” clause
of § 2254(d) is whether the state court’s determination under the Strickland standard is
unreasonable, not merely whether it is incorrect. Id. at 100-01. The question is whether there is
any reasonable argument that counsel satisfied Strickland’s deferential standard.” Id. at 105.
Furthermore, a state court’s findings of fact, made in the course of deciding a claim of ineffective
assistance of counsel are presumed to be correct. Odem v. Hopkins, 382 F.3d 846, 849 (8th Cir.
2004).
IV. Discussion
Grounds 1 and 2: Petitioner claims the state motion court erred in denying his
Rule 29.15 motion because both his trial attorney and appellate attorney were
ineffective for failing to argue that Petitioner’s convictions for both attempted
kidnapping and attempted sexual abuse in the first degree violated double
jeopardy in that they were cumulative punishments for one “undivided
continuous course of conduct.” Petitioner claims this violated his rights
guaranteed by U.S. Const. Amends. V, VI and XIV.
Here, Petitioner confined Victim without her consent for a substantial period for the
purpose of terrorizing her. This conduct was identified as a substantial step towards the
commission of kidnapping.3 Petitioner’s second charge was for pushing Victim to the ground,
restraining her, and not allowing her to leave. This conduct was identified as a substantial step
towards the commission of first-degree sexual abuse.4 Petitioner claims that his trial counsel
and appellate counsel failed to argue that Petitioner’s convictions violated double jeopardy
because Petitioner’s convictions for attempted kidnapping and attempted sexual abuse in the
first degree constituted cumulative punishments for the same course of conduct. Petitioner
claims there was only one “substantial step” toward one crime, so he can only be convicted of
one offense. Doc. [1] at 14.
Double jeopardy “protects against multiple punishments for the same offense.” United
States v. Anderson, 783 F.3d 727, 738–39 (8th Cir. 2015). A double jeopardy challenge fails if
one of the two offenses requires proof of an additional fact not required by the other. Blockburger
v. United States, 284 U.S. 299, 304 (1932). The focus is on the proof necessary for statutory
elements of the offenses, rather than the evidence presented at trial.” Illinois v. Vitale, 447 U.S.
3 Under Revised Statutes of Missouri Section 556.110.1(5), kidnapping occurs when someone “unlawfully removes
another without his or her consent from the place where he or she is found or unlawfully confines another without his
or her consent for a substantial period, for the purpose of… (5)… terrorizing the victim….”
4 Under Revised Statutes of Missouri Section 565.100.1, sexual abuse in the first degree is when someone “subjects
another person to sexual conduct… by the use of forcible compulsion.”
410, 416 (1980).
On review, the state court noted that Revised Statutes of Missouri Section 556.041 states
“When the same conduct of a person may establish the commission of more than one offense he
may be prosecuted for each offense.” Doc. [9-13] at 8. However, the statute also states that a
person may not be convicted of more than one offense when “[t]he offense is defined as a
continuing course of conduct and the person’s course of conduct was uninterrupted….” Id. 5 The
state court correctly identified the issue at hand and determined that Petitioner’s right against
double jeopardy was not violated because each of these charges required the court to find proof
of a fact not required for the other offense. For the charge of attempted kidnapping, the trial court
found Petitioner had the purpose to terrorize Victim. For the charge of attempted sexual abuse in
the first-degree, the trial court found Petitioner had the purpose to subject Victim to sexual
conduct by forcible compulsion. Furthermore, the conviction of attempted sexual abuse in the
first-degree required a finding that Petitioner pushed Victim while the conviction of attempted
kidnapping required a finding that Petitioner confined Victim. Therefore, attempts of two distinct
crimes were present. Petitioner has not shown that his trial or appellate counsel were inadequate
for failing to argue that Petitioner’s convictions violated double jeopardy because such an
argument would not have been meritorious, and the result of the proceeding would not have been
different. Petitioner cannot satisfy the “doubly differential” standard required to obtain habeas
relief on his claims regarding counsel’s ineffective assistance. The decision of the state court was
neither unreasonable, nor was it based on an unreasonable determination of the facts. Grounds 1
and 2 are denied.
5 The state court then stated, with respect to Petitioner’s two convictions for attempt, Section 564.011.1 provides, “A
person is guilty of attempt to commit an offense when, with the purpose of committing the offense, he does any act
which is a substantial step towards the commission of the offense.” Doc. [9-13] at 8.
Ground Three: Petitioner claims the state motion court erred in denying
his Rule 29.15 motion because his trial counsel was ineffective for failing to
litigate a motion to suppress statements made by Petitioner to the detectives.
Petitioner claims this violates his rights guaranteed by U.S. Const. Amends.
V, VI and XIV.
At the evidentiary hearing for Petitioner’s Rule 29.15 Motion, Petitioner’s trial counsel
testified that he had filed a motion to suppress, but Petitioner and trial counsel jointly decided
not to argue the motion after discussing its merits. Doc. [9-9] at 37. Trial counsel further testified
at the evidentiary hearing that he did not think the motion to suppress would be successful
because Petitioner had initially lied to the detectives. Id. at 37. Furthermore, when trial counsel
reviewed the recording of the conversation between the detectives and Petitioner, he did not
believe that Petitioner had requested an attorney. Id. at 46. Therefore, trial counsel determined
it would be Petitioner’s word against the detectives’ word and that the motion to suppress would
be denied. Id. at 43.
No one disputes that Petitioner did not receive a Miranda warning during the interview
at his home. Doc. [9-13] at 6. The question is if Petitioner was subject to custodial interrogation
during the encounter with the detectives at his house requiring a Miranda warning. Miranda
warnings only need to be administered when a person is taken into custody, or his freedom has
been significantly restrained. Oregon v. Elstad, 470 U.S. 298, 309 (1985). The circumstances of
each case influence the determination of whether the suspect is “in custody.” California v.
Beheler, 463 U.S. 1121, 1125 (1983). “[T]he ultimate inquiry is simply whether there is ‘formal
arrest or restraint on freedom of movement’ of the degree associated with a formal arrest.” Id.
(quoting Oregon v. Mathiason, 429 U.S. 492, 495 (1977)). “[W]hether a suspect is ‘in custody’
is an objective inquiry.” J.D.B. v. North Carolina, 564 U.S. 261, 270 (2011). “Two discrete
inquiries are essential to the determination: first, what were the circumstances surrounding the
interrogation; and second, given those circumstances, would a reasonable person have felt he or
she was not at liberty to terminate the interrogation and leave.” Thompson v. Keohane, 516 U.S.
99, 112 (1995).
When making the determination, the state court analyzed the location, the statements
made, the presence or absence of physical restraints, whether Petitioner was informed of the
voluntary nature of the interaction, and whether he had freedom of movement during the
interview. Doc. [9-13] at 6-7. The state court found that Petitioner was questioned at his home
after he invited the detectives inside, he was not handcuffed, his movement was not restricted,
and the detectives repeatedly told Petitioner the conversation was voluntary. Id. Petitioner
argued that he requested an attorney, but this request was not identifiable from the recording of
the interview and the motion court did not find any credible evidence to support Petitioner’s
claim. Id.
The state court determined that Petitioner did not establish that a motion to suppress
statements made during the questioning would have been meritorious and had not provided any
evidence showing that his counsel was not adequate or that the result of the proceeding would
have been different if counsel had pursued the motion to suppress filed. Therefore, Petitioner
cannot satisfy the “doubly differential” standard required to obtain habeas relief on his claims
regarding counsel’s ineffective assistance. The state court’s decision was not unreasonable and
was not based on an unreasonable determination of the facts. Ground 3 is denied.
CONCLUSION
Accordingly, all of Petitioner’s Grounds for relief are denied.
IT IS HEREBY ORDERED that the Petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254, Doc. [1], is DENIED.
IT IS FURTHER ORDERED that the Petitioner has not made a substantial showing of a
denial of a constitutional right, and this Court will not grant a certificate of appealability.
A separate judgment in accordance with the Memorandum and Order is entered this same date.
Dated this 28th Day of March, 2025 Th
tS TREW T. SCHELP
UNITED STATES DISTRICT JUDGE
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