# Taylor v. Steele

> District Court, E.D. Missouri · March 31, 2019 · 372 F. Supp. 3d 800

URL: https://www.frixlaw.com/law-library/cases/7253209

## Case

- **Full name:** Leonard S. TAYLOR v. Troy STEELE
- **Court:** District Court, E.D. Missouri
- **Decided:** March 31, 2019
- **Citations:** 372 F. Supp. 3d 800
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Sippel
- **Judges:** Sippel
- **Cited by:** 6 later opinions in the Frix Law Library

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## Opinion text

RODNEY W. SIPPEL, UNITED STATES DISTRICT JUDGE
This matter is before me upon the petition of Missouri state prisoner Leonard Taylor for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 . (Doc. 19). After carefully considering Taylor's petition, Respondent's brief (Doc. 29), the underlying record (Doc. 29, Ex. A-JJ), and Taylor's reply (Doc. 46), I will deny the petition for the reasons set forth below.
BACKGROUND
1. Investigation & Arrest
On the evening of December 3, 2004, police investigated the St. Louis County home of Angela Rowe and her three children at the request of family members and school officials. (Doc. 29, Ex. P at 23) The investigating officers observed that the front yard "was covered with the daily paper[,]" "[the] [mailbox] was full of mail[,]" and that all the windows and doors were locked. ( Id. ) With the assistance of the fire department, the investigating officers forced entry into the house through a window. ( Id. )
Inside, they discovered the bodies of Rowe and her children: Alexus Conley, age ten; Acqreya Conley, age six; and Tyrese Conley, age five. ( Id. , Ex. P at 24) Each had sustained gunshot wounds to the head. ( Id. ) Rowe had sustained additional gunshot wounds to the torso and left arm. ( Id. , Ex. Q at 28) The officers observed that the temperature inside the house was "very cold," that the television was on, and that there were no indications of burglary or previous forced entry. ( Id. , Ex. P at 25) Based on information from Rowe's family that a fifth person, Taylor, lived at the house, the officers searched the residence and found no one else present. ( Id. ) Taylor then became a person of interest within the investigation. ( Id. , Ex. Q at 12)
The investigation quickly established a) that Taylor had an outstanding arrest warrant for a parole violation; b) that he had a wife, Debrene Williams, in California; c) that he had been driven to Lambert International Airport by his sister-in-law, Elizabeth Williams, on November 26; and d) that he had departed St. Louis that day on a flight to California under the alias "Louis Bradley." (Doc. 29, Ex. P at 21) Using cell phone records, the investigating officers determined that Taylor subsequently traveled from California to Kentucky. ( Id. )
In conjunction with United States Marshals, the investigating officers set up surveillance of several residences in Madisonville, Kentucky that Taylor had been known to frequent in the past. (Doc. 29, Ex. R at 11) On the morning of December 9, 2004, members of the surveillance team observed Taylor attempting to leave one of the residences by hiding on the floorboard of a car's passenger compartment. ( Id. at 12 ) The car was stopped and Taylor was subsequently arrested. ( Id. at 15 ) At the time of his arrest, Taylor was traveling under the alias "Jason Lovely" and possessed pamphlets, documents, and other materials laying out procedures for creating additional aliases and fraudulent vital documents. ( Id. , Ex. at 15-17)
*807 Taylor was charged with four counts of first-degree murder and four counts of armed criminal action for the killings of Angela Rowe and her children. (Doc. 29, Ex. A at 55-58) While awaiting trial for their murders, Taylor was tried and convicted on an unrelated charge of forcible rape and sentenced as a persistent sex offender to a prison term of one hundred years without parole. See State v. Taylor , 238 S.W.3d 145 (Mo. 2007) (summarizing underlying facts and affirming conviction on direct review); see also Taylor v. State , 344 S.W.3d 217 (Mo. App. 2011) (noting length of sentence and affirming denial of post-conviction relief). After multiple continuances were granted to Taylor's defense team to ensure adequate representation, his murder trial began on February 25, 2008. (Doc. 29, Ex. P at 11)
The guilt phase of Taylor's trial for first-degree murder and armed criminal action concluded on February 28, 2008. The jury deliberated for four and half hours before finding Taylor guilty on all counts. (Doc. 29, Ex. S at 59-60) The jury reconvened the next day, February 29, 2008, for the penalty phase of the trial. (Doc. 29, Ex. T) The jury heard evidence of Taylor's prior convictions, testimony from the victim in the aforementioned forcible rape case, and testimony from family members of Angela Rowe and her children. ( Id. at 7-12) On Taylor's orders, his trial team did not present any argument in mitigation and entered as their sole evidence a written stipulation of Taylor's good conduct while incarcerated. ( Id. at 5-6, 12, 19) The jury deliberated for three hours before recommending the death penalty on each of the four counts of first-degree murder. ( Id. at 20) On April 17, 2008, the trial court sentenced Taylor to death on each of the four murder charges and imposed consecutive sentences of life imprisonment on the armed criminal action charges. ( Id. at 21-22)
3. Direct Appeal
Taylor raised eleven grounds in his direct appeal. (Doc. 29, Ex. U at 2) I briefly outline Taylor's arguments on direct appeal as follows:
In his first, second, third, and fourth grounds, Taylor argued that the trial court abused its discretion in excluding certain witness statements and other evidence as hearsay. (Doc. 29, Ex. U at 36, 62, 77, and 84)
In his fifth ground, Taylor argued that the trial court erroneously admitted forensic test results "that lacked probative value and [were] unreliable, speculative, and misleading." ( Id. at 89)
In his sixth ground, Taylor argued that the trial court erroneously denied his motions to exclude those forensic test results based on the timing of their disclosure to the defense. ( Id. at 99)
Seventh, Taylor argued that his speedy trial rights under Missouri state law and under the Missouri and United States Constitutions were violated by the multiple continuances granted to his defense counsel. ( Id. at 107)
Eighth, Taylor argued that the trial court erroneously admitted a conversation between his brother Perry and the police, during which Perry stated that Taylor had confessed to the murders of Angela Rowe and her children, because the interrogating detective allegedly expressed an opinion as to Perry's credibility as a witness. ( Id. at 118)
Ninth, Taylor argued that the trial court erroneously allowed a cause strike of a potential juror who had expressed reservations about her ability to consider capital punishment during voir dire. ( Id. at 124)
Tenth, Taylor argued that the State made improper arguments during closing *808 and that the trial court plainly erred by not intervening sua sponte . (Doc. 29, Ex. U at 129)
Finally, Taylor argued that the trial court abused its discretion by denying his request for a mistrial when, upon being found guilty by the jury, he was handcuffed in view of the jury while being removed from the courtroom. ( Id. at 133)
The Missouri Supreme Court 1 addressed each of Taylor's claims on the merits and affirmed the trial court's judgment on October 27, 2009. State v. Taylor , 298 S.W.3d 482 (Mo. 2009).
4. Post-Conviction Review
Taylor raised eighteen grounds in his amended motion for post-conviction relief, which incorporates his prior pro se motion for post-conviction relief. (Doc. 29, Ex. Z at 42-114, Ex. AA, Ex. BB at 5-27) Two of these grounds are related to claims Taylor raises in his habeas petition. The first is that he received ineffective assistance of trial counsel when his defense team failed to adequately examine phone records used at trial and adduce allegedly favorable evidence from cross-examination of the phone records' custodians. (Doc. 29, Ex. AA at 5) The second ground that Taylor's waiver of evidence / counsel at the penalty phase of the trial was not knowing, voluntary, and unequivocal is related to an ineffective assistance of counsel claim Taylor raises for the first time in his habeas petition.
The post-conviction court conducted an evidentiary hearing on May 20, 2011, on three of Taylor's claims: two ineffective assistance of trial counsel claims and a claim that the death penalty as administered in Missouri is unconstitutional. (Doc. 29, Ex. DD, Ex. EE) The post-conviction court denied Taylor's motion for relief on September 19, 2011. (Doc. 29, Ex. CC at 38-69)
5. Appeal of Post-Conviction Review
Taylor appealed the denial of post-conviction relief to the Missouri Supreme Court. (Doc. 29, Ex. FF) He raised four grounds in his appeal. His first and second grounds disputed the post-conviction court's findings on claims raised at the evidentiary hearing. ( Id. at 37-40, 43-82, 83-116) His third and fourth grounds alleged that the post-conviction court erred in refusing to grant an evidentiary hearing on additional claims. ( Id. at 41-42, 117-129, 130-138) The Missouri Supreme Court affirmed the post-conviction court's decision on October 30, 2012. (Doc. 29, Ex. II)
6. Petition for Writ of Habeas Corpus
Taylor raises eight claims in his petition for habeas relief.
First, that his speedy trial rights under Missouri state law and under the Sixth Amendment of the United States Constitution were violated by the delay of approximately thirty-one months between his invocation of his speedy trial right in July of 2005 and his trial in February 2008. (Doc. 19 at 5-13)
Second, that his constitutional right to present a complete defense under the Sixth and Fourteenth amendments was violated by the exclusion of allegedly favorable evidence as hearsay. ( Id. at 13-21)
Third, that his trial counsel was constitutionally ineffective for failing to object to the admission of phone records and for failing to adequately investigate those records to identify their utility for cross-examination, and that his rights to due process of law and to be free of cruel and unusual punishment under the Fourteenth *809 and Eighth Amendments were violated by allegedly false testimony given by a phone records custodian. ( Id. at 21-42)
Fourth, that his constitutional rights to due process of law and a fundamentally fair trial under the Fifth, Sixth, and Fourteenth Amendments were violated when the trial court denied his motion to exclude forensic test results on the basis of their late disclosure and allegedly misleading nature. ( Id. at 42-50)
Fifth, that his constitutional rights to due process of law and to be free of cruel and unusual punishment under the Sixth, Eighth, and Fourteenth Amendments were violated by the exclusion of a prospective juror on the basis of her views on capital punishment, because those views allegedly did not impair her ability to abide by her duties as a juror. (Doc. 19 at 50-54)
Sixth, that his constitutional rights to due process of law and to be free of cruel and unusual punishment were violated by the State's allegedly improper arguments during voir dire and at closing, and that his trial counsel was constitutionally ineffective for failing to object to those arguments. ( Id. at 54-58)
Seventh, that his constitutional rights to due process of law and to be free of cruel and unusual punishment were violated when he was handcuffed in front of the jury at the conclusion of the guilt phase of his trial. ( Id. at 58-59)
Eighth, that his trial counsel was constitutionally ineffective for failing to disregard Taylor's directive to not make a closing argument at the penalty phase of the trial. ( Id. at 59-62)
LEGAL STANDARD
A federal district court's power to review state court criminal decisions in a federal habeas corpus proceeding is limited. Harrington v. Richter , 562 U.S. 86 , 92, 131 S.Ct. 770 , 178 L.Ed.2d 624 (2011) ("Under 28 U.S.C. § 2254 (d), the availability of federal habeas relief is limited with respect to claims previously 'adjudicated on the merits' in state-court proceedings"). "As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Harrington , 562 U.S. at 102 , 131 S.Ct. 770 .
A federal court's power to grant a writ of habeas corpus is governed by 28 U.S.C. § 2254 (d), which provides:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the 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).
The Supreme Court construed § 2254(d) in Williams v. Taylor , 529 U.S. 362 , 120 S.Ct. 1495 , 146 L.Ed.2d 389 (2000). With respect to the "contrary to" language, a majority of the Court held that a state court decision is contrary to clearly established Federal law "if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law" or if "the state court *810 decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams, 529 U.S. at 413 , 120 S.Ct. 1495 . Under the "unreasonable application" prong of § 2254(d)(1), a writ may issue if "the state court identifies the correct governing legal rule from [the Supreme Court's] cases but unreasonably applies [the principle] to the facts of the particular state prisoner's case." Id. Thus, "a federal habeas court making the 'unreasonable application' inquiry should ask whether the state court's application of clearly established federal law was objectively unreasonable." Id. at 409 , 120 S.Ct. 1495 . Although the Court failed to specifically define "objectively unreasonable," it observed that "an unreasonable application of federal law is different from an incorrect application of federal law." Id. at 410 , 120 S.Ct. 1495 .
Moreover, "a determination of a factual issue by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254 (e)(1). In addition, claims in a habeas petition "that have not been presented to the state courts, and for which there are no remaining state remedies, are procedurally defaulted." Skillicorn v. Luebbers , 475 F.3d 965 , 976 (8th Cir. 2007). "Unless a habeas petitioner shows cause and prejudice or that he is actually innocent of the charges, a court may not reach the merits of procedurally defaulted claims in which the petitioner failed to follow applicable state procedural rules in raising the claims." Id.
Finally, several of Taylor's claims assert that he received constitutionally ineffective assistance of counsel. To prevail on a claim alleging ineffective assistance of counsel, a defendant must satisfy the two-part test of Strickland v. Washington , 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984). For a convicted defendant to prove that his counsel was ineffective, the defendant must first show that the counsel's performance was deficient. Strickland , 466 U.S. at 687 , 104 S.Ct. 2052 . This requires the defendant to show "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. A defendant can demonstrate that counsel's performance was deficient where counsel's performance "[...] 'fell below an objective standard of reasonableness.' " Wiggins v. Smith , 539 U.S. 510 , 522, 123 S.Ct. 2527 , 156 L.Ed.2d 471 (2003) (quoting Strickland , 466 U.S. at 688 , 104 S.Ct. 2052 ). But "[...] '[strategic] choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.' " United States v. Rice , 449 F.3d 887 , 897 (8th Cir. 2006) (quoting Strickland , 466 U.S. at 690 , 104 S.Ct. 2052 ). And "[...] [there] is a 'strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.' " Id. (quoting Strickland , 466 U.S. at 689 , 104 S.Ct. 2052 ). If the defendant fails to show that his counsel was deficient, the court need not address the second prong of the Strickland test. Brown v. United States , 311 F.3d 875 , 878 (8th Cir. 2002).
In that second prong, a defendant must demonstrate that the deficient performance was "so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland , 466 U.S. at 687 , 104 S.Ct. 2052 . "The defendant 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 , 104 S.Ct. 2052 .
*811 The Eighth Circuit has described the Strickland test as follows: the questions a court must ask are "[whether] counsel's performance was in fact deficient and, if so, whether the defendant was prejudiced by the inadequate representation. If we can answer 'no' to either question, then we need not address the other part of the test." Fields v. United States , 201 F.3d 1025 , 1027 (8th Cir. 2000). When evaluating counsel's performance, the court "must indulge in a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland , 466 U.S. at 689 , 104 S.Ct. 2052 . Considered objectively, counsel's performance is gauged by "whether it was reasonable 'under prevailing professional norms' and 'considering all the circumstances.' " Fields , 201 F.3d at 1027 (quoting Strickland , 466 U.S. at 688 , 104 S.Ct. 2052 ). "[We] avoid making judgments based on hindsight." Id. A reviewing court's "scrutiny of counsel's performance must be highly deferential." Strickland , 466 U.S. at 689 , 104 S.Ct. 2052 .
ANALYSIS
1. An alleged violation of Taylor's state statutory rights is not cognizable in a federal habeas petition, and his federal constitutional right to a speedy trial was not violated by the grant of multiple continuances where those continuances protected his constitutional right to effective assistance of counsel and where he failed to identify prejudice resulting from the delay .
Taylor was arrested in December of 2004. He asserted his right to a speedy trial in July of 2005. He was not tried until February of 2008. He argues that this delay violated his statutory rights under the Uniform Mandatory Disposition of Detainers Law (UMDDL), which provides that a prisoner may request the disposition of pending charges within one hundred and eighty days. "If the [charge] is not brought to trial within the [one hundred and eighty day] period and if the court finds that the offender's constitutional right to a speedy trial has been denied, no court of this state shall have jurisdiction of such [charge]... and the court shall issue an order dismissing the same with prejudice." Mo. Rev. Stat. § 217.460 (2009) ; see also Doc. 19 at 6. Taylor also argues that this delay violated his federal constitutional right to a speedy trial under the Sixth and Fourteenth Amendments. (Doc. 19 at 5-6)
The Missouri Supreme Court summarized the facts relevant to this claim in its denial of Taylor's direct appeal.
In December 2004, a complaint was filed charging Taylor with four counts of first-degree murder and four counts of armed criminal action. In February 2005, private counsel entered his appearance on Taylor's behalf. The complaint was superseded by an indictment filed on March 30, 2005. In April 2005, Taylor began serving a 100-year sentence on an unrelated conviction and in July 2005, filed a request for disposition of the pending charges.
In August 2005, private counsel filed a motion to withdraw on the basis that inadequate financial resources prevented him from providing adequate representation for Taylor. The court granted the motion and continued the case until September 16, 2005, for entry of new counsel. The court ordered that the period from August 11th to September 16th be tolled for purposes of the Uniform Mandatory Disposition of Detainers Law (UMDDL).
A public defender entered an appearance on August 26, 2005. On September 15, 2005, the State filed notice of intent *812 to seek the death penalty, and three public defenders from the capital trial division entered an appearance.
A hearing was held on September 16, 2005, at which Taylor's counsel requested a continuance based on the complexity of the capital murder case, the need for extensive discovery for both the guilt and penalty phases, and the additional trial obligations of the next year. Taylor objected to this request. The court granted the request, and trial was set for October 11, 2006.
In November 2005, the State filed a motion to reconsider the order extending the trial date, arguing that Taylor properly filed his speedy trial request and that as a result, the case should be tried before January 21, 2006. The State was also concerned with whether Taylor's counsel's caseload was sufficient good cause to continue the case. After a hearing was held, the trial court denied the State's request.
In July 2006, Taylor's trial counsel filed a motion to continue, requesting additional time for investigation and preparation for trial. After a hearing, the trial court overruled the motion. A motion to reconsider this denial was filed and included "Defendant's Consent to Continuance" signed by Taylor, requesting that the case be continued, "as additional time is needed for defense counsel to prepare for trial." Judicial notice was taken of the arguments raised at the previous hearing, and the case was continued to May 2007.
In September 2006, the case was transferred to a different judge. In October 2006 and April 2007, Taylor filed pro se motions to dismiss for violating the UMDDL; the trial court overruled both.
Taylor's counsel's final request for a continuance occurred in April 2007 in connection with the State's disclosure of [blood & DNA] test results. Taylor objected to this continuance. The trial court, after overruling Taylor's motions to exclude the evidence, granted the continuance, and trial was held on February 25, 2008.
State v. Taylor , 298 S.W.3d 482 , 502-503 (Mo. banc 2009).
In his habeas petition, Taylor argues that the one hundred and eighty day clock imposed by the UMDDL was not properly tolled between August 11, 2005, and October 11, 2006, because:
[Taylor] did not consent to any of the continuances and consistently refused to waive his right to a speedy trial. See State ex rel. Clark v. Long , 870 S.W.2d 932 , 941 (Mo. App. S.D. 1994). Only after the 180 day period expired and the court had, in [Taylor's] view, already lost jurisdiction did petitioner reluctantly agree to one continuance.
(Doc. 19 at 11) In the alternative, Taylor argues that the UMDDL time limit was not properly tolled between May 30, 2007, and February 20, 2008, because:
[This] delay was caused solely by the state's late disclosure of DNA evidence. [Taylor's] sunglasses were seized from his luggage on the date he was arrested on December 9, 2004. [Doc. 29, Ex. D at 57]. There is no excuse for the state waiting nearly two years, until November 8, 2006, to test the glasses. [ Id. , Ex. D at 58]. This two hundred sixty-six (266) day delay alone violates the UMDDL and demonstrates that petitioner was denied a speedy trial. Courts from several jurisdictions have held that a defense continuance does not waive a defendant's right to a speedy trial where there has been an inexcusable delay in providing discovery or there was some other violation of discovery rules by the prosecutor. See, e.g. , State v. T.G. , 990 So.2d 1183 , 1184 (Fla. App. 2008) ;
*813 Commonwealth v. Edwards [ 528 Pa. 103 ], 595 A.2d 52 , 54-55 (Pa. 1991) ; State v. Price [ 94 Wash.2d 810 ], 620 P.2d 994 , 996 (Wash. 1980).
( Id. at 11) Taylor cites Simmons v. United States , 390 U.S. 377 , 88 S.Ct. 967 , 19 L.Ed.2d 1247 (1968), for the proposition that "it is unconstitutional to place a defendant in a situation where he must waive one constitutional right in order to assert another." See Doc. 19 at 12; see also Simmons , 390 U.S. at 394 , 88 S.Ct. 967 (holding that defendant's self-incriminating testimony offered in support of his motion to suppress evidence on Fourth Amendment grounds could not later be admitted against him at trial). Taylor also cites Marshall v. State , 759 N.E.2d 665 (In. App. 2001), State v. Allen , 205 Or.App. 219 , 134 P.3d 976 (2006), and State v. Wamsley , 71 Ohio App.3d 607 , 594 N.E.2d 1123 (1991), as support for his argument that "it is fundamentally unfair to place [sic] a defendant... to either go to trial unprepared or waive his right to a speedy trial.... [A] continuance that is compelled by a state's lack of diligence in providing discovery must be charged against the state." ( Id. at 12)
Taylor also argues that the UMDDL:
[Created] a liberty interest entitling [Taylor] to procedural due process protection under the Fourteenth Amendment. Vitek v. Jones , 445 U.S. 480 [ 100 S.Ct. 1254 , 63 L.Ed.2d 552 ] (1980). Because of this clear UMDDL violation, St. Louis County, Missouri lacked the legal authority and power to bring petitioner to trial in February of 2008, which denied petitioner due process of law. Blackledge v. Perry , 417 U.S. 21 , 30-31 [ 94 S.Ct. 2098 , 40 L.Ed.2d 628 ] (1974).
( Id. )
Finally, Taylor argues that he has a freestanding constitutional claim under the Sixth Amendment as determined by Barker v. Wingo , 407 U.S. 514 , 92 S.Ct. 2182 , 33 L.Ed.2d 101 (1972) :
Under the Barker test, reviewing courts must assess the length of delay, the reasons for the delay, the defendant's assertion of the right, and prejudice. Id. at 530 [ 92 S.Ct. 2182 ]. Each of these four factors weigh heavily in favor of [Taylor] on this Sixth Amendment claim.
First, since the length of the delay was over three years, this lapse of time is presumptively prejudicial. 2 See State ex rel. Garcia v. Goldman , 316 S.W.3d 907 , 911 (Mo. banc 2010). The reasons for the delay are not attributable for petitioner, and petitioner asserted his right to a speedy trial more than two and a half years before trial commenced.
( Id. at 13) (footnote in original).
Respondent argues that the decision of the Missouri Supreme Court denying this claim on the merits is reasonable and entitled to deference. The Missouri Supreme Court stated:
Taylor invoked his right to a speedy trial pursuant to the UMDDL, section 217.450-485. The UMDDL, including the right to be tried within 180 days, is reviewed de novo. State v. Nichols , 207 S.W.3d 215 , 219 (Mo. App. 2006).
The UMDDL provides that a defendant who currently is confined in a department correctional facility may request a final disposition of an untried indictment. Section 217.460 provides that:
*814 Within one hundred eighty days after the receipt of the request and certificate, pursuant to sections 217.450 and 217.455, by the court and the prosecuting attorney or within such additional necessary or reasonable time as the court may grant, for good cause shown in open court, the offender or his counsel being present, the indictment, information or complaint shall be brought to trial... (emphasis added).
The trial court has discretion to allow a continuance for good cause. State ex rel. Wolfrum v. Wiesman , 225 S.W.3d 409 , 412 (Mo. banc 2007). Defense counsel may show good cause for a continuance under the statute even if defendant objects so long as the request is based on reasonable grounds showing the delay is for good cause. Id. Once a defendant invokes the right to counsel, counsel has the authority "to seek reasonable continuances for the purpose of assuring effective assistance of counsel." Id.
The court had good cause to grant the continuances. Although the continuances were requested over Taylor's objection, the requests were sought to prepare for trial after appointment as well as to respond to newly discovered evidence before trial. Given the complexity of the trial and the amount of preparation and investigation required, counsel established sufficient grounds for good cause for the delay, and the additional time ensured that Taylor received effective assistance of counsel. Further, the requests were granted in open court with Taylor and counsel present. Taylor fails to show a violation of the UMDDL.
...
The defendant's right to a speedy trial is founded upon the Sixth Amendment of the United States Constitution and Mo. Const. art. I, § 18(a). The United States and Missouri constitutions provide equivalent protection for a defendant's right to a speedy trial. State ex rel. McKee v. Riley , 240 S.W.3d 720 , 729 (Mo. banc 2007). To assess whether a right has been respected or denied involves a balance of four factors: (1) the length of delay; (2) the reason for the delay; (3) the defendant's assertion of his right; and (4) prejudice to the defendant. Id.
It is undisputed that the delay here was lengthy and that Taylor effectively asserted his right to speedy trial. As discussed above, the reason for a substantial portion of the delay was to provide counsel with more time to prepare for trial, which effectively protected Taylor's right to effective assistance of counsel. Moreover, Taylor was not prejudiced by this delay because he was concurrently incarcerated on unrelated charges and serving a sentence of 100 years.
Taylor fails to show a violation of his constitutional or statutory right to speedy trial. Point seven is denied.
Taylor , 298 S.W.3d at 503-504 (footnotes omitted); ( see also Doc. 29 at 11-14)
Respondent also argues that the portion of Taylor's claim pertaining to the UMDDL is not cognizable in a federal habeas petition:
The Eighth Circuit has held that "violation by state officials of a state speedy trial law, taken alone, does not present a federal claim reviewable on habeas petition." Poe v. Caspari , 39 F.3d 204 , 207 (8th Cir. 2004 [sic] 3 ); see also *815 Shigemura v. Moore , No 4:07-CV-459 (CEJ), 2007 WL 2736306 , at *4 (E.D.Mo. September 17, 2007) ("Issues concerning the interpretation and application of a state law are not cognizable in federal habeas review.")
( Id. at 14-15 )
Finally, Respondent argues that the portion of Taylor's claim pertaining to his constitutional right to a speedy trial should be denied on the merits:
Taylor fails to explain how the Missouri Supreme Court unreasonably applied the standard set forth in Barker v. Wingo , 407 U.S. 514 [ 92 S.Ct. 2182 , 33 L.Ed.2d 101 ] (1971 [1972] ).... While it is clear that Taylor asserted his speedy trial right and that the state tried him two years and ten months after formal charging, the delays were at the request of the defense , not the State or the court.
"Delay caused by the defense weighs against the defendant... because the attorney is the defendant's agent when acting, or failing to act, in furtherance of the litigation, delay caused by the defendant's counsel is also charged against the defendant." Vermont v. Brillon , 556 U.S. 81 , 90 [ 129 S.Ct. 1283 , 173 L.Ed.2d 231 ] (2009) (internal quotations omitted). Further, Taylor's only claim of prejudice, keeping in mind that that [sic] he was incarcerated before his trial serving a 100 year sentence, is that "videotaped statements of the defense witnesses Gerjuan Rowe and Beverly and Sherry Conley taken by police either mysteriously disappeared or were accidentally erased" [Doc. 19 at 13]. Taylor does not provide any more information about the tapes or their contents, including whether a transcript of the statements exists, if and where police made reference to the tapes in their reports, or if and where the tapes are referenced in the legal file. Further, Taylor does not explain why the delay was the reason such statements were lost, what favorable evidentiary value the statements would have had, or how the presence of the statements would have altered the result of his trial.
( Id. at 15-16)
In reply, Taylor argues that Poe v. Caspari does not control in this case and that I may consider his UMDDL claim on the merits. (Doc. 46 at 25) Taylor makes three separate claims in support of this point:
First, the decision in Poe rests upon a long line of older cases that... was implicitly overruled by the United States Supreme Court in Alabama v. Bozeman , 533 U.S. 146 [ 121 S.Ct. 2079 , 150 L.Ed.2d 188 ] (2001). In Bozeman , the Supreme Court granted discretionary review to address an [Interstate Agreement on Detainers] claim that had been litigated before Alabama's state courts. If detainer violations such as the one presented here did not present a federal question, it is obvious that the United States Supreme Court would not and could not have intervened and addressed the question before it in Bozeman .
( Id. at 25)
Second, a violation of the UMDDL, because it is an interstate compact, falls within a federal court's jurisdiction under the Compact Clause embodied in Art. I, § 10, cl. 3 of the United States Constitution.... The fact that Missouri is a signatory to the UMDDL with seven other states makes the UMDDL a compact.
The UMDDL is intended to be construed in harmony with the Interstate Agreement on Detainers (IAD). State ex rel. Kemp v. Hodge , 629 S.W.2d 353 , 359 (Mo. banc 1982). As an interstate compact approved by Congress, the Interstate Agreement on Detainers is a federal law and its violation presents a federal question cognizable in a 2254 action.
*816 Brown v. Wolff , 706 F.2d 902 , 905 (1983) ; see also Cuyler v. Adams , 449 U.S. 433 , 438 [ 101 S.Ct. 703 , 66 L.Ed.2d 641 ] (1981).
The UMDDL too should be considered an interstate compact within the Compact Clause of the United States Constitution.... It is ultimately the federal court's duty to interpret and apply congressionally approved compacts given their federalized nature. Delaware River Joint Toll Bridge Commission v. Colburn , 310 U.S. 419 [427, 60 S.Ct. 1039 , 84 L.Ed. 1287 ] (1940)...
( Id. at 25-28)
Third... the [state court decisions regarding] the UMDDL arbitrarily deprived petitioner of a liberty interest guaranteed by the due process clause of the Fourteenth Amendment. See Hicks v. Oklahoma , 443 [sic] 4 U.S. 343, 346 [ 100 S.Ct. 2227 , 65 L.Ed.2d 175 ] (1980). In such situations, where a constitutional violation removes the authority of a state or federal entity to bring a petitioner to trial, a due process violation occurs. See Blackledge v. Perry , 417 U.S. 21 , 30-31 [ 94 S.Ct. 2098 , 40 L.Ed.2d 628 ] (1974).
... there is no relitigation bar under 2254(d)(1) or (d)(2) because the Missouri Supreme Court, in addressing the claim, overlooked a critical factual issue that is central to this claim for relief. The state court failed to take into account the delay occasioned by the state's dilatory behavior in in [sic] failing to seek DNA testing of petitioner's eyeglasses. This delay, by itself, necessitated a continuance delaying the trial beyond the one hundred eight (180) day window, in clear violation of the UMDDL.... the Missouri Supreme Court, in addressing a separate claim that this DNA evidence should have been excluded because of the state's misconduct, did not find any excuse for the dilatory behavior of the prosecution, despite refusing to reverse the trial court's ruling not to exclude this evidence as an abuse of discretion. State v. Taylor , 298 S.W.3d at 501 -502 .
( Id. at 28-29)
Finally, Taylor argues that the Missouri Supreme Court's decision incorrectly adjudicated his speedy-trial constitutional claim because:
[It] overlooked the obvious fact that a great portion of the delay was the fault of the prosecutor who "dragged his feet" by over two years before finally subjecting petitioner's sunglasses to forensic testing. By overlooking this critical fact that is central to [Taylor's] claim for relief, the Missouri Supreme Court's decision is both factually and legally unreasonable under 2254(d)(1) and (d)(2). See Wiggins , 539 U.S. at 528 [ 123 S.Ct. 2527 ].
In assessing prejudice, the Missouri Supreme Court merely notes that no prejudice could be established because [Taylor] was imprisoned on other charges. There is no 2254(d) relitigation bar to this Court's de novo review of the issue of prejudice for several reasons. First, the court failed to consider... that this delay deprived [Taylor] of the exculpatory evidence contained in the videotaped statements of Gerjuan Rowe, Beverly Conley, and Sherry Conley.... In addition, the appropriate speedy trial analysis *817 should not consider the fact that [Taylor] would otherwise be incarcerated on other unrelated convictions as conclusive evidence of a lack of prejudice. See Smith v. Hooey , 393 U.S. 374 , 379 [ 89 S.Ct. 575 , 21 L.Ed.2d 607 ] (1969). One of the policy considerations at the core of the Sixth Amendment requirement of a speedy trial is to minimize the anxiety, concern and other hardships associated with pending charges hanging over a defendant's head for a prolonged period of time. Id.
( Id. at 29-31).
Having carefully reviewed the parties' briefs, the Missouri Supreme Court's decision, and the underlying legal file, I find this ground for relief to be without merit.
First, Taylor's claim pursuant to the UMDDL is not cognizable in a federal habeas petition. "Violation by state officials of a state speedy trial law, taken alone, does not present a federal claim reviewable on habeas petition." Poe v. Caspari , 39 F.3d 204 , 207 (1994) (internal citations omitted).
Second, Taylor's argument that Poe does not control is without merit. The United States Supreme Court's decision in Alabama v. Bozeman did not implicitly overrule Poe or the prior cases upon which Poe rests. Instead, Bozeman addressed a claim pertaining to the Interstate Agreement on Detainers (IAD), not the UMDDL. The IAD is a federal law enacted and approved by Congress; see 18 U.S.C. App. 2 § 2. The UMDDL is a state statute; see Mo. Rev. Stat. § 217.450 (2009). The fact that the UMDDL is "intended to be construed in harmony with the [IAD]" does not transform state law into federal law for purposes of a habeas petition. (Doc. 46 at 26) (citing State ex rel. Kemp v. Hodge , 629 S.W.2d 353 , 359 (Mo. banc 1982) ). The UMDDL was never considered and approved by Congress; therefore, it is not a "compact" within the meaning of the Compact Clause of the United States Constitution. See Cuyler v. Adams , 449 U.S. 433 , 439, 101 S.Ct. 703 , 66 L.Ed.2d 641 (1981) ("The requirement of congressional consent is at the heart of the Compact Clause").
Taylor's citations to Cuyler , to Brown v. Wolff , 706 F.2d 902 (9th Cir. 1983), and to Carchman v. Nash , 473 U.S. 716 , 105 S.Ct. 3401 , 87 L.Ed.2d 516 (1985), are unavailing because they each deal with applications of the IAD, not the UMDDL. Hicks v. Oklahoma , 447 U.S. 343 , 100 S.Ct. 2227 , 65 L.Ed.2d 175 (1980), in which the Supreme Court reversed a state sentence imposed under an unconstitutional sentencing scheme, and Blackledge v. Perry , 417 U.S. 21 , 94 S.Ct. 2098 , 40 L.Ed.2d 628 (1974), which considered a due process claim raised by a state's retaliatory prosecution after a prisoner asserted his right under a state statute to a de novo trial, are even farther removed from the claim at bar and have no applicability.
Delaware River cuts against Taylor, not in his favor: "[The] construction of such a compact sanctioned by Congress by virtue of Article I, § 10, clause 3 of the Constitution, involves a federal 'title, right, privilege, or immunity' which when 'specially set up or claimed' in a state court may be reviewed [in federal court.]" Delaware River Joint Toll Bridge Commission v. Colburn , 310 U.S. at 427 , 60 S.Ct. 1039 (emphasis added). A Congressional sanction, or the lack thereof, is the dispositive factor. Taylor implicitly recognizes this elsewhere in his reply: "Because Congressional consent places the interpretation of an interstate compact squarely in the federal courts, those same courts have the authority to enforce the terms and conditions of the compact." (Doc. 46 at 28) (emphasis added)
*818 Third, Taylor's repeated assertions that the prosecutor "dragged his feet" or engaged in "dilatory behavior" are not supported by the record. No evidence supports the proposition that the late inclusion of blood & DNA evidence recovered from Taylor's sunglasses was anything other than a miscommunication between various State agencies. ( See Doc. 29, Ex. M at 21-22 (transcript of hearing adjudicating trial counsel's motion to suppress based on the late date of disclosure and the State's explanation of same)
Fourth, Taylor fails to establish that his constitutional right to a speedy trial was violated under the standard established by Barker v. Wingo , 407 U.S. 514 , 92 S.Ct. 2182 , 33 L.Ed.2d 101 (1972). The Wingo factors are "[length] of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." Id. at 530 , 92 S.Ct. 2182 . No single factor is dispositive: "[rather], they are related factors and must be considered together with such other circumstances as may be relevant." Id. at 533 , 92 S.Ct. 2182 . The Court addressed the prejudice prong as follows:
Prejudice, of course, should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect. This 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. Of these, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.
Wingo , 407 U.S. at 532 , 92 S.Ct. 2182 . In its analysis of prejudice as a result of the trial continuances the Missouri Supreme Court considered only the fact that Taylor was incarcerated at that time as the result of an unrelated conviction. This is only one of three interests the right to a speedy trial was meant to protect. Yet Taylor fails to establish any interest that was prejudiced by the delay. His conclusory assertion in his reply brief that the delay "deprived him of the exculpatory evidence contained in the videotaped statements of Gerjuan Rowe, Beverly Conley, and Sherry Conley" does not suffice. (Doc. 46 at 30) Taylor fails to explain how the videotaped statements would have differed, if at all, from the in-person testimony Beverly & Sherry Conley actually provided at trial. ( See Doc. 29, Ex. S at 31-33 (Beverly Conley) and 34-37 (Sherry Conley) ) Nor does he explain how they would have differed, if at all, from the excerpts of Gerjuan Rowe's deposition that were read to the jury at trial. ( See id. , Ex. S at 39) Nor, in fact, does he establish that the videotaped statements were lost during the additional time resulting from the delay. ( See id. , Ex. P at 47 (police detective testifying on direct examination that hard drive containing videotapes had been accidentally erased, but not identifying date on which accidental erasure occurred) and at 53 (cross-examining police detective on same but declining to ask when erasure occurred) )
Taylor did clearly and repeatedly assert his right to a speedy trial. The length of the delay was considerable, though not "presumptively prejudicial" as Taylor asserts. (Doc. 19 at 13) "[The] length of delay that will [generate presumptive prejudice] is necessarily dependent upon the peculiar circumstances of the case. To take but one example, the delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge." Wingo , 407 U.S. at 530 -531 , 92 S.Ct. 2182 (footnote omitted).
*819 The reasons for the delay are substantially attributable to Taylor, his objections notwithstanding, because the continuances were granted at the request of his defense team solely for the purpose of ensuring that he would be effectively represented at his capital trial. This is true even if the defendant himself objects to his counsel's delay. See Vermont v. Brillon , 556 U.S. 81 , 129 S.Ct. 1283 , 173 L.Ed.2d 231 (2009) (reversing Vermont Supreme Court's decision that three-year delay violated defendant's speedy trial rights where defendant's attorneys requested extensions over his objections).
Taylor failed to establish that his ability to defend himself at trial was prejudiced by the delay, his interest in avoiding excessive pretrial detention was negated by the unrelated 100-year sentence he was already serving, and he makes no argument that his "anxiety and concern" were excessively burdened within the meaning contemplated by Wingo . I find that the Missouri Supreme Court's determination of this issue was not contrary to, or an unreasonable application of clearly establish Federal law, nor was it a decision based on an unreasonable determination of the facts. As a result, I will deny this ground for relief.
2. Taylor's constitutional right to present a complete defense was not violated by the exclusion of hearsay evidence where that evidence lacked indicia of reliability and was not otherwise admissible .
Taylor's trial strategy was to argue that the victims were still alive after his departure from St. Louis on November 26. His trial counsel therefore sought to admit certain statements in support of that strategy which the trial court excluded as hearsay. The Missouri Supreme Court summarized the relevant facts and denied this claim on the merits in Taylor's direct appeal:
... Hearsay Statements
... Taylor argues that the trial court abused its discretion in excluding certain statements as hearsay. Taylor argues that the statements were admissible pursuant to certain exceptions to the hearsay rule or pursuant to the curative admissibility doctrine.
...
Hearsay is an "out-of-court statement that is used to prove the truth of the matter asserted and that depends on the veracity of the statement for its value." State v. Kemp , 212 S.W.3d 135 , 146 (Mo. banc 2007). "Generally, courts exclude hearsay because the out-of-court statement is not subject to cross-examination, is not offered under oath, and is not subject to the fact finder's ability to judge demeanor at the time the statement is made." Bynote v. Nat'l Super Markets, Inc. , 891 S.W.2d 117 , 120 (Mo. banc 1995). Exceptions to the general prohibition against hearsay may apply when circumstances assure the trustworthiness of the declarant's statement. Id. The exceptions argued in this case are statements of present sense impression, statements of declarant's present mental condition, verbal conduct, and the constitutionally recognized exception under the due process clause.
For a hearsay statement to be admissible pursuant to the present sense impression exception, the statement must be made simultaneously, or almost simultaneously, with the occurrence of an event or act, the statement must describe or explain the event; and the declarant must perceive the event with his own senses. State v. Smith , 265 S.W.3d 874 , 879 (Mo. App. 2008) ( citing 2 McCormick on Evidence § 271, at 251 (6th ed. 2006) ). These statements have *820 certain indicia of trustworthiness to support their admissibility. Id. Errors in memory and time for calculated misstatements are not present because the statements are made as declarant perceives the event or immediately thereafter. Id. Further, in most cases, "a witness will have observed the event and can corroborate the hearsay statement, and the declarant will often be available at trial for cross-examination to verify his or her credibility." Id.
An out-of-court statement of the declarant's present mental condition is also admissible as an exception to the hearsay rule so long as the statements are relevant and their relevancy outweighs their prejudicial effect. State v. Bell , 950 S.W.2d 482 , 483 (Mo. banc 1997). This exception is generally limited to cases "where the hearsay declarations of mental condition are especially relevant - particularly where the defendant has put the decedent's mental state at issue by claiming accident, self-defense or suicide." Id.
A hearsay statement may also be admissible as a verbal act. State v. Copeland , 928 S.W.2d 828 (Mo. banc 1996) ; See Copeland v. Washington , 232 F.3d 969 (8th Cir. 2000) (writ of habeas corpus granted on sentencing defect). This includes statements written or oral that have independent legal significance or effect. See Estate of Oden v. Oden , 905 S.W.2d 914 , 918 (Mo. App. 1995).
Lastly, an out-of-court statement may be admitted pursuant to the constitutionally based exception in the due process clause. This exception applies to hearsay statements that "both exonerate the accused and are originally made and subsequently offered at trial under circumstances providing considerable assurance of their reliability." State v. Hutchison , 957 S.W.2d 757 , 761 (Mo. banc 1997) (citing to Chambers v. Mississippi , 410 U.S. 284 , 300, 93 S.Ct. 1038 , 35 L.Ed.2d 297 (1973) ). Three circumstances of reliability have been recognized: "1) each confession is in a very real sense self-incriminatory and unquestionably against interest; 2) each statement was spontaneously made to a close acquaintance shortly after the murder occurred; and 3) the statements are corroborated by other evidence in the case." Id. (internal quotations omitted).
...
In addition to arguing exceptions to the hearsay rule, Taylor argues that several of the statements are admissible pursuant to the curative admissibility doctrine. The curative admissibility doctrine applies when one party introduces inadmissible evidence and allows the opposing party to introduce otherwise inadmissible evidence to rebut or explain inferences raised by the first party's evidence. State v. Middleton , 998 S.W.2d 520 , 528 (Mo. banc 1999).
... Gerjuan's Payphone Conversation
... Taylor argues the trial court abused its discretion in excluding Gerjuan's testimony that [Angela] Rowe told her she was calling from a pay telephone on November 28th. Taylor argues that the testimony was admissible as Rowe's present sense impression or under the due process clause. In addition, he argues that the testimony was admissible pursuant to the curative admissibility doctrine to refute the inference that Rowe and Gerjuan did not speak to each other on that date from the absence of a call to Gerjuan in Rowe's home telephone records.
i. Facts
Gerjuan Rowe was served with a subpoena to testify at trial. Gerjuan did not appear and the court issued a writ of *821 attachment. At the end of the State's case, Taylor's counsel informed the court that the writ had not been served, and that the defense intended to call Gerjuan as a witness in the case. As a result, the court granted Taylor permission to read portions of Gerjuan's deposition into evidence. The court, however, excluded the following portion as hearsay:
A. [Gerjuan] We was out walking around, and she did call me from a pay phone on Jennings Station Road and West Florissant at the Amoco.
Q. [Defense] Okay.
A. And I was supposed to have been on my way that way, but by my car not being legal and by Jennings police being ass holes, I didn't just go over there.
Q. But you knew she was at a pay phone then on the -
A. Yes.
Q. - on the early morning hours -
A. Yes.
Q. - of the 28th?
A. Yes.
[PROSECUTOR]: How did you know she was on a pay phone?
A. Because I asked her, I asked her, where are you? And she said she was on the pay phone . And I said - I was supposed to have been on my way to get her. I was supposed to have been on my way to get her, that's what I was supposed to be doing. That's how I knew she was at the Amoco on Jennings Station Road and West Florissant.
Q. [DEFENSE] Were you ever able to actually hook up with her then?
A. No.
(Emphasis added).
The existence of the telephone call on November 28th was admissible, and testimony regarding such a call was admitted into evidence; however, evidence that Rowe was calling from a pay telephone was hearsay and inadmissible.
ii. Analysis
Gerjuan's testimony that Rowe told her that she was calling from a pay telephone on November 28th was hearsay. The statement was offered for the truth of the matter asserted: that Rowe called Gerjuan from a pay telephone on November 28th.
This hearsay statement is not admissible as a present sense impression. The statement was about Rowe's location at a specific time in response to a question from Gerjuan. The statement did not concern an event or describe or explain an event that Rowe perceived. Further, the statement lacks indicia of trustworthiness. Taylor did not offer any evidence corroborating the statement that Rowe made the call from a pay telephone on November 28th. Although Gerjuan's cell phone records show an outgoing call to the pay telephone at 4:36 a.m. on November 28th, the statement was offered to prove that [Rowe] placed the call from the pay telephone. There is no record of an incoming call from the pay telephone to Gerjuan's cell phone or any telephone, and there is no evidence of outgoing calls from the pay telephone. Lastly, neither Rowe nor Gerjuan was subject to cross-examination to resolve the confusion.
The statement is also not admissible pursuant to the constitutionally based hearsay exception in the due process clause because it lacks circumstances of reliability. The statement was not against Rowe's interest or spontaneously made, and most importantly, as discussed above, this statement is not sufficiently corroborated by other evidence in the case. In addition to the lack of evidence in the phone records, Gerjuan's testimony regarding the dates of events *822 prior to the murders, such as when she last saw Rowe, was conflicting, 5 and the circumstances of this telephone call were also unclear. 6
Finally, the curative admissibility doctrine does not apply. The State presented evidence of Rowe's home phone records and Gerjuan's cell phone records. This evidence was admissible, and as a result, Gerjuan's inadmissible testimony about the pay phone cannot be admitted pursuant to this doctrine.
Gerjuan's proposed testimony regarding Rowe's statement is hearsay and inadmissible. The trial court did not abuse its discretion.
... Calendar Notations
... Taylor argues the trial court abused its discretion in excluding Gerjuan's testimony about Taylor's prior communication with Rowe and Rowe's notations in the calendar and in refusing to allow the jury to view the notations in the calendar. Taylor alleges Gerjuan's testimony is admissible as Rowe's present sense impression of Taylor's actions, as statements of Rowe's state of mind and under the due process clause. Lastly, he argues that the testimony and notations were admissible pursuant to the curative admissibility doctrine.
i. Facts
The trial court prohibited Taylor from reading into evidence the following section of Gerjuan's deposition because it was hearsay:
A. Yes, yes, yes, yes, yes. He was gone maybe six days a week out of seven days.
Q. Would there be times when he wouldn't call her even to talk to her once he was on the road?
A. Right.
Q. Just was out of communication?
*823 A. Phone off. Come over there.
The following portion of Gerjuan's deposition regarding Rowe's calendar was read into evidence:
Q. [Defense counsel] I'm going to show you now what I've marked as Defendant's Exhibit 8, and see if you recognize that. Just flip those pages, if you would.
A. [Gerjuan] Uh-uh. Yeah.
Q. Do the notes on that, it's a calendar for 2004, do those notes appear to be also in [Rowe's] handwriting?
A. Yes, some of it. Yes, these is [Rowe's], yes, I do believe.
The following portion of the deposition was excluded as hearsay:
Q. If you'll go to November of 2004 -
A. Ooh. Ooh. Ooh. And this is us. I'm telling you, this is what we do. I might have a calendar like this too.
Q. She keeps track in there of when he's gone and -
A. Yes, yes, yes.
Q. That was just a habit she had, right?
A. Uh-huh.
Q. Now if you look at November 26th -
A. Un-huh.
Q. - does she write "off" there?
A. Yes .
Q. And that's her handwriting as well?
A. Uh-huh.
Q. Now, had Angela discussed with you in November of 2004 that [Taylor] would be leaving town again or what his schedule was going to be?
A. No. The only time I would know is when he might not answer the phone or she was fed up with him, he had done it too much.
Q. Tell me more what you mean by that.
A. Like I come back Monday, I'm leaving on Wednesday, that's too much. You just got back, you're fixing to leave again.
Q. Right.
A. And when he would go, he stay gone weeks at a time.
Q. Right.
A. Weeks at a time.
(Emphasis added).
Rowe's calendar with her notations was admitted into evidence, but because the calendar contained hearsay, the calendar was not published to the jury. The first month included in the calendar is January 2004 and the last month is January 2005. The notations in the calendar were as follows.
From February to August, the notations include "didn't come home yet," no call today" and "were home" and each of these notations was followed by "L.T." The other entries on these days were personal appointments. From September to November, "paycheck" and "off" are written every other Friday and "work," "off" or "home" are written on every Saturday and Sunday. In addition, written on most days up to November 15th is "home" or "no show, no call," but none of these entries contain "L.T." as in the previous months. The remaining entries from November 15th through January 2005 are personal appointments, with "off" and "paycheck" written every other Friday. Specifically, on November 26th, the notations are "off" and "paycheck."
ii. Analysis
Rowe's statement to Gerjuan and Rowe's notations on her calendar were hearsay. The statement and notations were offered for the truth of the matter: that it was not unusual for Taylor not to see or talk to Rowe for periods of time.
*824 Neither is admissible as a present sense impression. There is no evidence that Rowe made these statements to Gerjuan or wrote the notations simultaneously on the discovery of the presence or absence of Taylor or shortly after Rowe spoke to or spent time with him. The statements and notations also lack indicia of trustworthiness as neither Rowe nor Gerjuan was available for cross-examination, there is no corroborating evidence that Taylor was with Rowe or talked to her on those days, and there is no evidence as to when Rowe made this statement to Gerjuan.
The state of mind exception also does not apply to the notations written on the calendar because the notations are not statements of mental condition, and most importantly, Rowe's state of mind is not particularly relevant because Taylor has not placed Rowe's mental state at issue.
The due process hearsay exception does not apply because there exist no circumstances of reliability. These statements and notations are not against Rowe's interest and were not made spontaneously after the event. Further, the statements are not corroborated by other evidence in the case. Although Gerjuan identified the handwriting in the calendar as Rowe's, Gerjuan had no personal knowledge of the calendar and never witnessed Rowe write any of these notations.
The curative admissibility doctrine does not apply. The State's evidence of telephone records from Rowe's home telephone and Taylor's cell phone were admitted to show that telephone calls between Taylor and Rowe ended in November. The State also offered testimony of Rowe's employer to establish that Rowe was absent from work on November 26th. Because this evidence was admissible, the inadmissible evidence of the testimony or notations cannot be admitted pursuant to this doctrine.
Gerjuan's testimony about the calendar and the notations in the calendar are hearsay and inadmissible. The trial court did not abuse its discretion.
... Check Carbon Copy
... Taylor argues that the trial court abused its discretion in refusing to allow the jury to view Rowe's checkbook that contained a carbon copy of a "check" dated November 27th. Taylor argues that the November 27th "check" is relevant and does not contain hearsay. In the alternative, he argues that if the "check" does contain hearsay, it is admissible as a statement of Rowe's state of mind of her "belief that she was alive and physically able to write a check on that date" or admissible as verbal conduct.
i. Facts
A checkbook was seized from Rowe's home during the investigation. The checkbook is a duplicate check design, which contains a carbon copy paper behind each individual check. Rowe's checkbook contained a duplicate of a "check" dated November 27, 2004. This "check" is made out for the amount of $ 390.00, but the "pay to the order" line is blank. Rowe's home telephone number is written in the memo line. The checkbook was admitted into evidence, but it was not published to the jury because it contained hearsay.
ii. Analysis
The "check" dated November 27th is hearsay. It was admitted to prove that Rowe was alive on November 27th, which was one day after Taylor left St. Louis. The "check" lacks reliability, as the payee line is blank, there is no evidence that anyone received the "check,"
*825 or that anyone had knowledge of the existence of the "check."
Further, Taylor fails to show that an exception to the hearsay rule applies. The date written on the "check" is not a statement of Rowe's present mental condition and does not reflect any belief as to whether or not she was alive on that date, and Taylor has not placed Rowe's mental state at issue.
The check is not admissible as a verbal act, because there is no evidence that Rowe either completed or used the "check" as a legal document. It was not negotiated. There is no evidence that anyone received it, and there is no evidence of the purpose or circumstance under which Rowe wrote it, especially in light of the absence of a person or entity listed as the payee. Estate of Oden v. Oden , 905 S.W.2d 914 , 918 (Mo. App. 1995), dealt with completed legal documents acknowledged before notaries that were self-authenticated. It does not help Taylor, as this situation does not deal with a completed legal document.
The "check" is hearsay and inadmissible, and the trial court did not abuse its discretion in refusing to publish the checkbook to the jury.
... Rowe's Statement to Gerjuan
... Taylor argues that the trial court abused its discretion in excluding Gerjuan's testimony of Rowe's statement to Gerjuan that Taylor's relative lived at Rowe's house. Taylor alleges the testimony was admissibility under the due process clause and the curative admissibility doctrine to refute the inference that only Taylor could have committed the crime from the absence of any forced entry and the evidence that only Taylor had access to the home.
i. Facts
The trial court excluded the following portion of Gerjuan's deposition:
Q. [Defense counsel] And I think you sort of said you knew that [Taylor] had a brother, but do you know anything more about him?
A. No. I don't know if that was the brother or the cousin that was living over there.
Q. But you knew someone was living at the house?
A. Uh-huh, in the basement.
Q. How did you know about that?
A. Because I asked her, I said, is he the only one over there? She was like, no, his cousin had came from somewhere and was supposedly living over there.
Q. She called him his cousin?
A. Yeah, or the brother, one of them.
There was no evidence that Gerjuan had ever visited Rowe at her current residence prior to the discovery of the bodies. At trial, Perry Taylor testified that he allowed Rowe to use his vehicle when he was away as a truck driver. There was also testimony that Perry kept some belongings at Rowe's home. In addition, Rowe's neighbor testified at trial, stating that she 7 saw a man walking out of Rowe's house around Thanksgiving; however, she did not recall the date and did not recognize the man.
ii. Analysis
Gerjuan's testimony that Rowe told her that Taylor's brother or cousin lived at Rowe's house was hearsay. The statement was made out of court and was *826 offered for the truth of the matter: that another person had access to the house.
Taylor fails to show that an exception to the hearsay rule applies to this testimony. The statement is not admissible pursuant to [the] due process hearsay exception because the statement does not exonerate [ ] Taylor and lacks any circumstances of reliability. The statement is not against Rowe's interest, was not made spontaneously after an event, and was not sufficiently corroborated. Gerjuan had never been to Rowe's residence, and there was no additional evidence that another adult, such as Taylor's brother or cousin, lived in Rowe's home.
The curative admissibility doctrine does not apply. The State introduced testimony of three police officers, all of whom stated that the windows and doors were locked, the front door was undamaged, and the house was not ransacked. The State also introduced several properly admitted photographs depicting the condition of the house, including the doors and windows. Because the State referred to admissible evidence, Taylor cannot introduce inadmissible evidence pursuant to this doctrine.
Gerjuan's proposed testimony about the relative is hearsay and inadmissible. The trial court did not abuse its discretion.
... Conclusion
The evidence at issue... was inadmissible, and the trial court did not abuse its discretion. Furthermore, Taylor was not prejudiced by the exclusion of this evidence. Although the above statements were excluded as hearsay, the jury was able to consider Gerjuan's testimony that she talked to Rowe on November 28th, Gerjuan's telephone records showing a telephone call at that date and time, as well as testimony that Perry left some belongings at Rowe's home. Additionally, this evidence pales in the light of Taylor's confessions and other corroborating evidence.
State v. Taylor , 298 S.W.3d at 491-499 (bold typeface and first two footnotes in original) (third footnote added).
In his habeas petition, Taylor cites Chambers v. Mississippi , 410 U.S. 284 , 93 S.Ct. 1038 , 35 L.Ed.2d 297 (1973), for the proposition that "due process and the Sixth Amendment prohibits states from mechanistically applying its rules of evidence, such as the hearsay rule, to prevent a criminal defendant from presenting relevant and reliable evidence in his defense." (Doc. 19 at 17) Taylor also cites Crane v. Kentucky , 476 U.S. 683 , 106 S.Ct. 2142 , 90 L.Ed.2d 636 (1986), for the proposition that "it is unconstitutional to exclude exculpatory evidence based upon state evidentiary rules in the absence of any valid state justification." (Doc. 19 at 18) Taylor argues that "[neither] the trial court nor the Missouri Supreme Court... applied the appropriate balancing of interests tests... Instead, both courts mechanistically applied the hearsay rule 'to defeat the ends of justice.' " ( Id. (quoting Green v. Georgia , 442 U.S. 95 , 97, 99 S.Ct. 2150 , 60 L.Ed.2d 738 (1979) )
Taylor then argues that the excluded evidence was reliable and admissible pursuant to Chambers v. Mississippi for substantially the same reasons he unsuccessfully advanced before the state courts. ( See Doc. 19 at 18 (arguing that phone record showing a call from Gerjuan's cell phone to an Amoco gas station at 4:36 A.M. on November 28 supports reliability of Gerjuan's testimony that Angela called her from that gas station) ); see also id. at 19 (arguing that calendar entries were sufficiently reliable for admission because Gerjuan identified them as Angela's handwriting) and at 20 (arguing that carbon copy of *827 check was similarly reliable because of Gerjuan's identification) ).
Taylor also cites half a dozen cases from other federal and state jurisdictions in support of the proposition that other courts have admitted similar evidence under the hearsay exceptions the Missouri Supreme Court found inapplicable. ( See Doc. 19 at 19 (citing State v. Newell , 710 N.W.2d 6 (Iowa 2006), and McBeath v. Commonwealth , 244 S.W.3d 22 (Ky. 2007) ); see also id. (citing Parle v. Runnels , 387 F.3d 1030 (9th Cir. 2004), and Davis v. Allsbrooks , 778 F.2d 168 (4th Cir. 1985) ); see also id. at 20 (citing People v. Howard , 226 Mich.App. 528 , 575 N.W.2d 16 (1997), and United States v. Pang , 362 F.3d 1187 (9th Cir. 2004) ).
Finally, Taylor argues that "[because] the evidence submitted by the prosecution was primarily circumstantial, this constitutional violation cannot be considered harmless." (Doc. 19 at 20)
Respondent argues that this claim is not cognizable in a federal habeas petition under Estelle v. McGuire , 502 U.S. 62 , 72, 112 S.Ct. 475 , 116 L.Ed.2d 385 (1991), and that "this Court cannot re-examine the state court's evidentiary rulings." (Doc. 29 at 28-29) Respondent further argues that the decision of the Missouri Supreme Court on this claim is reasonable and entitled to deference. ( Id. at 29) In the alternative, respondent argues that this claim is without merit and distinguishes it from each of Chambers, Crane, and Green :
Unlike Chambers or Green , wherein a third party confessed to the crime for which the defendant was being tried, the evidence here did not present "persuasive assurances of trustworthiness." Chambers , 410 U.S. at 302 [ 93 S.Ct. 1038 ]. The statement that the victim called her sister from a pay phone was not corroborated by any phone records, nor made under circumstances that would point to heightened truthfulness. The same is true of the statement that there was a male living in the victim's house. Similarly, there was no corroborating evidence that the victim's calendar notations were accurate or that they were made contemporaneously with the events about which they were written. Neither the victim nor her sister were available for cross-examination on these points. The victim's check was never negotiated and lacked any indication of the purpose with which it was written. It cannot be said that the trial court excluded these pieces of evidence without "any valid state justification." Crane , 476 U.S. at 690-91 [ 106 S.Ct. 2142 ].
Further, and most importantly, none of the pieces of evidence Taylor discusses exonerate him.... The pieces of hearsay evidence at issue are: a statement that the victim called someone specifically from a pay phone; the victim's handwritten calendar; a check purportedly written by the victim; and a statement that an unidentified male lived in the victim's house. All of these statements lack independent indicia of reliability and the court did not err in keeping them out.
(Doc. 29 at 29-31)
In response, Taylor argues that "[this] claim is not subject to the standard of review provisions of 2254(d) because the Missouri Supreme Court did not directly address the due process component of the claim on direct appeal. Instead, the court based its ruling completely on state hearsay rules. 298 S.W.3d at 491 -499 . As a result, this Court is free to review this claim de novo. See Skillicorn v. Luebbers , 475 F.3d 965 , 972 (8th Cir. 2007)." (Doc. 46 at 31)
Taylor also argues in his reply that respondent "does not directly respond to the argument that the state courts mechanistically *828 applied state hearsay rules to exclude exculpatory evidence central to petitioner's defense... [and] asserts no countervailing state interest in excluding this evidence. See Crane v. Kentucky , 476 U.S. 683 , 690-691 [ 106 S.Ct. 2142 , 90 L.Ed.2d 636 ] (1986)." ( Id. ). Taylor attacks the probative value of the State's trial evidence, particularly the statement of Taylor's brother Perry, and cites seven cases in which habeas relief was granted "[despite] evidence that was much stronger than the proof utilized here to convict [Taylor.]" ( See Doc. 46 at 34 (citing Anderson v. Johnson , 338 F.3d 382 (5th Cir. 2003), and Trammell v. McKune , 485 F.3d 546 (10th Cir. 2007) ); see also id. at 35 (citing Spicer v. Roxbury Corr. Inst. , 194 F.3d 547 (4th Cir. 1999), and Reynoso v. Giurbino , 462 F.3d 1099 (9th Cir. 2006) ); see also id. at 36 (citing White v. Roper , 416 F.3d 728 (8th Cir. 2005), Schlup v. Delo , 513 U.S. 298 , 115 S.Ct. 851 , 130 L.Ed.2d 808 (1995), and Clemmons v. Delo , 124 F.3d 944 (8th Cir. 1997) ).
Taylor cites Brecht v. Abrahamson , 507 U.S. 619 , 113 S.Ct. 1710 , 123 L.Ed.2d 353 (1993), for the proposition that a constitutional violation must "have a 'substantial and injurious effect or influence in determining the jury's verdict' before it merits reversal on collateral review." (Doc. 46 at 37) (citing Brecht at 637, 113 S.Ct. 1710 ) "In addressing this issue, the Supreme Court instructed lower federal courts 'to ask directly, Do I, the judge, think that the error substantially influenced the jury's decision?' " ( Id. ) (quoting O'Neal v. McAninch , 513 U.S. 432 , 436, 115 S.Ct. 992 , 130 L.Ed.2d 947 (1995) ).
After reviewing the parties' submissions, the Missouri Supreme Court's opinion, and the underlying trial record, I find the following:
First, because the admission or exclusion of evidence is primarily a question of state law, an evidentiary determination rarely gives rise to a federal question reviewable in a habeas petition. Scott v. Jones , 915 F.2d 1188 , 1190-91 (8th Cir. 1990). Federal courts "may not review evidentiary rulings of state courts unless they implicate federal constitutional rights." Evans v. Luebbers , 371 F.3d 438 , 443 (8th Cir. 2004). To implicate a due process violation, the alleged improper evidence must be "so egregious that [it] fatally infected the proceedings and rendered [the] entire trial fundamentally unfair." Anderson v. Goeke , 44 F.3d 675 , 679 (8th Cir. 1995).
Second, Taylor's argument that the Missouri Supreme Court "did not directly address the due process component of the claim on direct appeal" and "based its ruling completely on state hearsay rules" is completely without merit in light of a plain reading of the opinion. See State v. Taylor , 298 S.W.3d at 493, 494-495, 497, 499 (expressly citing Chambers , 410 U.S. 284 , 93 S.Ct. 1038 , and analyzing applicability of hearsay rule's due process exception to Taylor's proffered submissions).
Third, Taylor's argument that the circumstantial nature of the State's evidence affects the analysis of prejudice in this claim is without merit. "Circumstantial evidence is 'intrinsically as probative as direct evidence.' " United States v. Cook , 842 F.3d 597 , 602 (8th Cir. 2016) (quoting United States v. Tschacher , 687 F.3d 923 , 934 (8th Cir. 2012) (further internal quotation omitted).
Fourth, a phone record that Gerjuan made a call from her cell phone to a payphone does not corroborate her deposition testimony that she received a call from that payphone. Taylor asserts that "[clearly], this unassailable business record provided strong corroborating evidence that the victim regularly communicated with *829 her sister from that payphone." (Doc. 46 at 32). It does not. The Missouri Supreme Court correctly assessed this argument through the lens of Chambers and found it bereft of indicia of reliability: the phone records do not show that Gerjuan received any calls from this payphone, Gerjuan was unavailable at trial for cross-examination, and her testimony in her deposition was contradictory and unclear. See note 7, supra at 36-37.
Fifth, the calendar notations were identified as Angela's handwriting only by Gerjuan, who was not present to testify at trial and was not cross-examined on her ability to reliably distinguish her sister's handwriting. There are no indicia in the record of whether the calendar notations were made contemporaneously with the dates they describe. Furthermore, the State called Angela Rowe's supervisors to testify during trial. They each testified that, contrary to the calendar notation describing November 26th as "off," Angela Rowe was scheduled for work on the 26th, 27th, and 28th, and did not appear or call in to work on those days. ( See Doc. 29, Ex. Q at 41-44)
Sixth, Gerjuan's ability to identify the carbon copy of the check as her sister's handwriting was not reliably established for the same reasons. There are no independent indicia in the record of when the check was written to support Taylor's argument that it was written on November 27th.
Seventh, Gerjuan's statement that a relative of Taylor's also lived at Angela's house was not sufficiently supported by independent indicia of reliability. Angela's neighbor, Elmer Massey, testified at trial that he observed a man exit and enter Angela's house the week of November 29th, 2004. ( See Doc. 29, Ex. S at 13-17) Massey could not identify whether he saw the man in question before or after Thanksgiving, nor could he distinguish the man he claimed to have seen from Taylor himself. 8 The trial record establishes that Taylor's brother Perry was known to keep some of his possessions at the victims' home, including his personal vehicle. (Doc. 29, Ex. P at 44) However, the trial record also establishes that Perry Taylor's professional vehicle, with which he traveled and which was tracked by GPS as part of his employment as a cargo truck driver, was out of St. Louis until November 25th, was in St. Louis from the 25th through the 29th, and departed St. Louis again on the 30th. ( Id. , Ex. P at 42) There are no other indicia in the trial record of any other men living at the victims' home, nor are there independent indicia that Gerjuan ever visited her sister's home.
Eighth, all of the cases Taylor cites in his petition are controlling are factually distinguishable and none are sufficient to disturb the deference given to the Missouri Supreme Court's judgment under § 2254(d). I will briefly address each case sequentially.
*830 State v. Newell , 710 N.W.2d 6 (Iowa 2006), admitted testimony about a phone call made by a murder victim in which she "seemed distressed, spoke in whispers, and stated [defendant] was standing there listening" under the present sense impression exception to the hearsay rule. Id. at 17 . The testimony was offered by the victim's ex-husband, who was the other party to the conversation and was present at trial for cross-examination. By contrast, a statement "about Rowe's location at a specific time in response to a question from Gerjuan... did not concern an event or describe or explain an event that Rowe perceived." Taylor , 298 S.W.3d at 494 . The Missouri Supreme Court's finding that the word "event," as contemplated by the present-sense exception to the hearsay rule, does not encompass the act of making a call from a pay phone is not unreasonable under § 2254(d)(2). "Further, the statement lacks indicia of trustworthiness [because it was not corroborated and neither party to the alleged conversation was available to testify at trial]." Taylor at 494. In McBeath v. Commonwealth , 244 S.W.3d 22 (Ky. 2007), the Kentucky Supreme Court admitted testimony from a witness who had heard one end of a phone conversation, then had the substance of the other end (which contained the defendant's statement) explained to him immediately after the conversation ended. As in Newell , the witness in question testified at trial and was subject to cross-examination.
In Parle v. Runnels , 387 F.3d 1030 (9th Cir. 2004), the Ninth Circuit Court of Appeals reversed a district court's holding that a murder victim's diary entries describing physical abuse by the defendant were inadmissible as present sense impressions. The Ninth Circuit noted that:
Neither the diary itself nor the circumstances surrounding its creation suggests that [the victim] had a motive to fabricate descriptions of abuse in her diary.... She even admits her own wrongdoing, confessing that she falsely accused, deliberately provoked, and physically abused petitioner - one time by stabbing him with a letter opener. The diary contains statements that [the victim] would not be likely to want anyone else to read: statements that are personally damaging and that reveal the most intimate details of her relationship with petitioner. There was nothing unreasonable about the state court's determination that [she] lacked a motive to falsify her own diary.
Parle , 387 F.3d at 1041 . This is distinguishable from the case at bar, in which there is no indication that the calendar notations were made contemporaneously with the dates marked. Indeed, one of the purposes of a calendar is to note upcoming events in advance as an aid to planning, as opposed to a diary which is necessarily filled in shortly after the fact. Davis v. Allsbrooks , 778 F.2d 168 (4th Cir. 1985), wherein the Fourth Circuit Court of Appeals affirmed the admission of a murder victim's diary, is distinguishable on similar grounds.
In People v. Howard , 226 Mich.App. 528 , 575 N.W.2d 16 (1997), the Court of Appeals of Michigan upheld the admission of a murder victim's appointment book under the state of mind exception to the hearsay rule "as a declaration of where [the victim] intended to go." Id. at 30 (internal citation omitted). The present case is distinguishable from Howard . In Howard , the victim's son testified at trial, was present for cross-examination, and identified the appointment book as his mother's. Id. Those indicia of reliability were absent in the present case. In United States v. Pang , 362 F.3d 1187 (9th Cir. 2004), the Ninth Circuit Court of Appeals upheld the admission of cancelled checks under the verbal act hearsay exception. Id. at 1192 (internal *831 citation omitted). The checks in Pang , unlike the check at issue here, were fully filled out and delivered to a second party. Id. at 1191-1192 .
Ninth, Taylor's contention that Respondent did not address his argument "that the state courts mechanistically applied state hearsay rules" in violation of his constitutional rights is belied by a plain reading of the response. Respondent distinguished Taylor's claim on the merits from Chambers , Crane , and Green . ( See Doc. 29 at 29-31; see also supra at 46-47 ) Respondent's argument need not cite the exact word "mechanistically" to respond to the substance of Taylor's claim.
Pursuant to O'Neal v. McAninch , I have considered whether I think that Taylor's claim of error substantially influenced the jury's decision. McAninch , 513 U.S. at 436 , 115 S.Ct. 992 . I have concluded not only that the alleged error did not substantially influence the jury's decision, but that the Missouri Supreme Court correctly affirmed the trial court's exclusion of hearsay evidence to begin with, because that evidence was not supported by the indicia of reliability required for the due process exception to the hearsay rule. Although the "State [is not] permitted to exclude competent, reliable evidence... when such evidence is central to the defendant's claim of innocence." Crane , 476 U.S. at 690 , 106 S.Ct. 2142 (emphasis added), the evidence excluded in this matter was neither competent nor reliable. As a result I will deny Taylor's second ground for relief.
3. Taylor's trial counsel team was not constitutionally ineffective when they declined to object to the admission and use of phone records, despite post-convictions discovery that slightly undermined the probative weight of those records, where the newly-discovered information did not refute the key proposition for which the records were admitted and where Taylor's conviction was independently supported by other evidence; nor did the inclusion of such records violate Taylor's due process rights when neither the prosecution nor the testifying witnesses were aware of the records' discrepancies at trial .
At trial, the State introduced evidence in the form of phone records from Charter Communications, which provided service to Angela Rowe's home phone. (Doc. 29, Ex. R at 62-74) Cathy Herbert, records custodian for Charter, testified that the Charter records contained all outgoing calls 9 from the victim's phone and some, but not all, incoming calls 10 . ( Id. at 63) The State offered *832 the Charter records to demonstrate a) that two outgoing calls were made from the victim's home phone shortly after midnight on November 24 to her sister Gerjuan; b) that all remaining outgoing calls made throughout the 24th and the morning of the 25th were either to check voicemail, to Taylor's brother, to Southwest Airlines, or to a family friend of the Taylors named Valerie Burke; and c) that no further outgoing calls were made from Rowe's home phone after the morning of November 25 until December 3, when police had entered the home and discovered the victims' bodies. (Doc. 29, Ex. S at 49; see also id. , Ex. AA at 36)
Two defense witnesses, Beverly Conley and Sherry Conley, had previously told police during their investigation that they last spoke with the victims on November 27 and 28. (Doc. 29, Ex. S at 32, 35) Upon seeing the Charter records, which did not support their statements to the police, Beverly and Sherry 11 recanted their earlier statements upon the belief that they must have incorrectly remembered the dates of their last conversations. ( Id., Ex. S at 33, 36) The Charter records showed that the last contact between Beverly Conley and the victims' home phone was on November 21 and that there had been no contact between Sherry Conley and the victims' home phone between November 26 and November 30. ( Id. )
The State also introduced evidence through Dan Jensen, records custodian for Sprint, who testified regarding Sprint records for cell phones belonging to Taylor, Taylor's brother Perry, and Gerjuan Rowe. (Doc. 29, Ex. R at 38) Jensen testified that these records contained all outgoing and incoming calls "in the [Sprint] network." ( Id. , Ex. R at 39) These records demonstrated a) that Gerjuan called the victims' home phone seventeen times on November 23, b) that Gerjuan did not call the victims' home phone between November 24 and December 3, and c) that Taylor's last call to the victims' home phone was on November 22. ( Id. , Ex. R at 42) The Sprint records further demonstrated that Taylor and his brother Perry made several calls during the late evening of November 23, the early morning of November 24, and on December 4 after the bodies of the victims had been discovered. ( Id. at 40-41) These calls were made to each other, to their mother Jessie Bland, and to Taylor's wife Debrene Williams. ( Id. )
The State used the Charter and Sprint records to support its argument that Taylor killed Rowe and her children prior to his departure from St. Louis on November 26, most likely in the early morning hours of November 24:
Let's go back to Angela Rowe. One thing Angie did consistently was talk on the phone. Thirty-six calls a day she averaged from November 1st through November 23rd. Thirty-six calls. November 24th, 25th there's eleven calls made. Final nine calls, the first two calls from that house are to Gerjuan Rowe, and they're at - excuse me, twenty-two minutes after midnight. On the 24th there's a call from the victim's house to Gerjuan Rowe, that's the last time. The next nine phone calls in this graph... [are] Valerie Burke[,] [who] Perry Taylor said [was a] long time friend of the [Taylor] family. Perry Taylor, Valerie Burke, Perry Taylor, Southwest Airlines, Southwest *833 Airlines, Perry Taylor, Perry Taylor, Perry Taylor. Those are not calls that Angela Rowe would have made; they're the calls the defendant's making. Her calls stop at 12:22 [A.M.]... The day her phone calls stopped is the day she died.
(Doc. 29, Ex. S at 49)
In Taylor's post-conviction proceedings, Taylor's counsel discovered several discrepancies within the Charter and Sprint records. Side-by-side comparison of the Charter and Sprint records revealed that a total of four calls from the victims' home phone to Taylor's cell phone on November 22 and 23, and one call from the victims' home phone to Perry Taylor's cell phone on November 24, appeared on the Sprint records but did not appear on the Charter records. (Doc. 29, Ex. AA at 13-14) This contradicted the testimony of Cathy Herbert, records custodian for Charter, who had testified at trial that the Charter records contained all outgoing calls. Herbert was again called to testify at Taylor's post-conviction hearing. (Doc. 29, Ex. DD at 38-91) When presented with the side-by-side comparison, Herbert stated that:
A. If I were provided these records I would have acknowledged there was a discrepancy. I can't testify to the accuracy of [Sprint's records], but I would have acknowledged there is obviously a discrepancy, and it is possible that one or the other could be incorrect or not contain all of them.
Q. Okay. So you would at least have been able to acknowledge if you were asked to make this comparison and testify at the trial February 2008, you would have then been able to at least acknowledge the possibility those Charter records do not show all outgoing calls?
A. Could not, yes.
Q. Can you explain why the Charter records, at least comparing these, appear not to show all outgoing calls?
A. No.
(Doc. 29, Ex. DD at 55-56)
Taylor's post-conviction counsel also elicited the fact that the victims' home phone appeared to have misidentified Gerjuan Rowe's cell phone with a different number on seventeen occasions. ( Id. , Ex. DD at 67) Herbert was unable to give a definitive explanation for this misidentification, but opined that it might be the product of technical errors or of calls being passed through another carrier's network. ( Id. , Ex. DD at 86)
Taylor's post-conviction counsel also discovered that seven calls made from the victims' home phone to Gerjuan Rowe's cell phone, all on November 22 and 23, appeared in the Charter records but did not appear in the Sprint records. ( Id. , Ex. DD at 68-71) This contradicted the testimony of Dan Jensen, records custodian for Sprint, who had testified at trial that the Sprint records included all outgoing and incoming calls on their network. Herbert opined, based on her experience and training, that that discrepancy meant "[that] Sprint did not have those incoming calls on their records." ( Id. , Ex. DD at 71)
Jensen was also called to testify at Taylor's post-conviction hearing. (Doc. 29, Ex. DD at 102-111, Ex. EE at 1-21) He was presented with the same discrepancies and, like Herbert, was unable to identify a definitive cause, though he testified that billing protocol, roaming on another carrier's network, and technical glitches were all possible explanations. 12 ( Id. , Ex. EE at 2, 5, 8, 10) When asked if Sprint "[guaranteed *834 ] a hundred percent accuracy of its records," Jensen answered "No." ( Id. , Ex. EE at 7)
In addition to identifying discrepancies between the Charter and Sprint records, Taylor's post-conviction counsel raised the issue of Charter's disclaimer policy to attack the accuracy of the Charter records. Christopher Avery, senior counsel for Charter, was called to testify. (Doc. 29, Ex. DD at 92-102) Avery testified that Charter began using a standard disclaimer in March or April of 2009. ( Id. , Ex. DD at 95) Avery testified that prior to that, Charter's disclaimer policy was as follows:
Q. ... [What] if any disclaimer language was used by Charter in responding to a record request to an outside party in 2004 [at the time of the murders?]
A. No disclaimer language was used.
Q. And what if any disclaimer language was used by Charter in responding to law enforcement requests or subpoenas for outside - or for records in 2005?
A. For the first six months no disclaimer language was used, some period after June 2005 but before March 2006, the 2006 disclaimer was used.
...
Q. Okay. And what if any disclaimer language was used by Charter in responding to records request [sic] to an outside party in 2007?
A. ... "Please be aware that Charter's billing records from which the above information is obtained are subject to human error, and Charter cannot always guarantee the accuracy of such records. You should not rely solely on this information, you should always independently corroborate the information Charter provides you with other information you have concerning the identity of the individual."
Q. Why did Charter include this disclaimer language in response to parties requesting records?
A. To make clear that to the requesting party that our records are what they are, and they may contain errors or omissions in them.
...
Q. From 2005 up to January 2008, if an attorney had asked you if Charter guarantees the accuracy of its telephone landline records, what would you have told that attorney?
A. I would have told them that we don't guarantee those records.
Q. Okay. And from 2005 to January 2008 if an attorney asked you about disclaimer language used by Charter from 2004 to 2007, in regards to its cell phone landline records, would you have told them what you have testified to here today?
A. I would.
(Doc. 29, Ex. DD at 96-100)
The State cross-examined Avery to elicit the fact that he had, in fact, been present during Herbert's depositions and had not given any such disclaimers:
Q. Mr. Avery, she just asked you some questions about what you would have done, but in this case you appeared in two depositions with Cathy Herbert; is that correct?
A. That's correct.
...
Q. In either - in both of those cases you actually appeared discussing things on the record; is that correct?
A. That's correct.
Q. But you never mentioned anything about the disclaimer?
A. I did not.
Q. Never mentioned anything about any concerns about the accuracy of the *835 records or what Ms. Herbert was testifying to?
A. No.
Q. As a matter of fact you reviewed it as the attorney for Charter, went over waiver of signature and whether to review the deposition for Ms. Herbert; is that correct?
A. That's correct.
Q. And during that deposition she's saying look the outgoing calls come from Charter records and we believe in the accuracy of our records; is that correct?
A. That's correct.
Q. But the incoming calls we get information from other carriers and we are not as certain about those records?
A. That's right. That's correct.
...
Q. Okay. Given the opportunity at deposition you didn't say anything about a disclaimer?
A. No.
Q. Or the reliability of the information?
A. No.
Q. And did you, in your review of the records for this case did you see anything where a disclaimer was sent by Charter with any records that were received by either the defense or law enforcement in this case?
A. No, no disclaimers were included.
( Id. , Ex. DD at 100-101)
In his habeas petition, Taylor argues that his trial counsel was constitutionally ineffective under Strickland for failing to object to the admission of these phone records, for failing to adequately examine the phone records for the discrepancies that later arose during post-conviction review, and for failing to adequately attack their accuracy during direct and cross-examination. (Doc. 19 at 21-22) Taylor argues that the discrepancies discovered during post-conviction proceedings prove that the Charter records did not show all outgoing calls, and therefore "[if] the Charter records did not show all outgoing calls, then the Charter records were not reliable to prove calls not made." ( Id. at 31) Taylor further argues that his due process rights were violated because "the Charter records custodian testified falsely that Charter's records of the victims' telephone contained all outgoing calls." ( Id. at 21-22)
Taylor claims that an objection to the admission of the phone records would have been sustained at trial because "1) a comparison of the available phone records demonstrated that the records contained inaccuracies and omissions; and 2) the State adduced no evidence that the companies' computer systems reliably produced accurate results." ( Id. at 34) Taylor cites State v. Dunn , 7 S.W.3d 427 (Mo. App. W.D. 1999), 13 for the proposition that "the reliability of a computer system or accuracy of the computer system's results is a prerequisite to the admission of computer-generated records." (Doc. 19 at 34) Taylor argues that his trial counsel's failure to discover the records' discrepancies was prejudicial to his defense and constituted ineffective assistance under Strickland . ( Id. at 35)
In addressing the due process portion of his claim, Taylor cites to Napue v. Illinois , 360 U.S. 264 , 79 S.Ct. 1173 , 3 L.Ed.2d 1217 (1959), and argues that "[it] is well settled that a conviction based on false testimony violates due process if it affected the judgment of the jury. See United States v. Bagley , 473 U.S. 667 , 678 [ 105 S.Ct. 3375 , 87 L.Ed.2d 481 ] (1985) ; see also *836 Durley v. Mayo , 351 U.S. 277 [ 76 S.Ct. 806 , 100 L.Ed. 1178 ] (1956)." (Doc. 19 at 41) Taylor also argues that "Ms. Herbert's false testimony... implicates the Eighth Amendment's ban on cruel and unusual punishment." ( Id. ) Taylor cites McCleskey v. Kemp , 481 U.S. 279 , 107 S.Ct. 1756 , 95 L.Ed.2d 262 (1987), and Schiro v. Farley , 510 U.S. 222 , 114 S.Ct. 783 , 127 L.Ed.2d 47 (1994), for the proposition that "[a] decision in a capital case must reflect a heightened degree of reliability to satisfy the Eighth Amendment... in all stages of a capital proceeding." ( Id. at 41-42)
Respondent argues that this claim was properly denied on the merits by the Missouri Supreme Court on Taylor's appeal from denial of post-conviction relief. The Missouri Supreme Court's decision held that:
... [Taylor] has failed to make a sufficient showing to support Strickland's prejudice prong because of the overwhelming evidence presented that established his guilt. He fails to demonstrate by a reasonable probability that but for counsel's alleged errors the result of the proceeding would have been different. Id. at 694, 104 S.Ct. 2052 .
The State presented overwhelming evidence of [Taylor's] guilt at trial. The phone records and the testimony in question were but pebbles in the mountain of evidence used to convict [Taylor] and are insufficient to undermine confidence in the outcome of the trial as required by Strickland . Id. The information presented at trial, and set forth below, was more than sufficient to support the jury's verdict.
The State theorized that the murders took place before [Taylor] left St. Louis November 26, 14 more specifically, sometime late on the night of November 23 into the early morning hours of November 24. 15 The evidence at trial as to when the murders took place was as follows: Victim, described as a "good employee," called in to work November 21 but missed all of her shifts beginning November 26 without calling her employer. Victim's children did not return to school Monday, November 29 following the Thanksgiving break. Newspapers in victim's yard started accumulating November 26, and her mailbox was full of mail. All of the windows and doors of victim's home were locked when the police entered December 3, and there were no signs of forced entry. The police found [Taylor's] fingerprints on a can of Glade air freshener in victim's kitchen. They recovered 10 bullets from the home, victim[,] and her children. All had been fired from the same gun - a .38 or .357-caliber revolver.
In addition to the evidence found in victim's home, [Taylor] confessed to his brother that he killed victim and her children. 16 [Taylor's] brother gave a taped interview to the police on December 8. In that interview, he stated that [Taylor] called him on November 24 and asked to borrow money. [Taylor] said that he needed to get away and that he had killed victim after she came at him with a knife. He killed her children because they were witnesses. The next day, [Taylor] again spoke with his brother, telling him that he was still in victim's home with the bodies because he was waiting for a letter from his *837 wife. 17 The police found an opened, unsigned letter in victim's home dated November 22 and postmarked from California. The letter contained four short sentences: "Is your man faithful? ? ? Eventually it all comes out. Enjoy it now. Because he's not yours." In addition to telling his brother about the letter, [Taylor] also said that he had turned on the air conditioning in victim's home. When the police entered and located the bodies December 3, they noticed that the thermostat was set to the lowest setting, the air conditioning was on and it was noticeably cool inside the home, unusual for December in Missouri. All of this evidence supported the jury's verdict.
[Taylor's] actions just prior to leaving St. Louis November 26 also permitted an inference of guilt. [Taylor] went to his sister-in-law's home November 26 asking for a ride to the airport. His sister-in-law saw him throw what appeared to be a long-barreled revolver into the sewer near her home. [Taylor] told his sister-in-law that he was leaving town because people were trying to kill him and that she would not see him alive again. He also warned her that she would hear things about him that were not true. After she dropped him off at the airport, he boarded a flight to Phoenix, then California, traveling under the name Louis Bradley.
The vehicle [Taylor] drove to his sister-in-law's home presented additional evidence of guilt. He had parked the vehicle, his brother's Chevrolet Blazer, outside his sister-in-law's home prior to leaving for the airport. The next day, [Taylor's] wife called her sister ( [Taylor's] sister-in-law). [Taylor] could be heard in the background yelling that the Blazer should be put into the garage. Later that week, [Taylor's] brother picked up the Blazer. The police found a partial box of Winchester .38 special ammunition inside the car.
[Taylor] was arrested December 9 as he tried to leave another girlfriend's home in Kentucky. He attempted to avoid authorities by lying on the floorboard of a car leaving the home. After his arrest, he gave the police a false name and Missouri identification with that name. The police found additional identification with yet another false name, as well as pamphlets about creating a new identity, in [Taylor's] belongings. A pair of glasses he had been seen wearing before the murders was found in his luggage. Forensic testing revealed the possible presence of blood on one of the nose guard areas. The sample was too small for further testing, but a partial DNA profile extracted from the area eliminated the children, but not victim, as a source. The DNA profile was found in 1 in every 12,930 African-American persons.
These facts indicate overwhelming evidence of guilt and demonstrate that [Taylor] is unable to show that, but for any alleged unprofessional errors of counsel, the result in his trial would have been different. Having failed to meet the "but for" prejudice test of Strickland , it is unnecessary to review [Taylor's] claims of ineffective assistance of counsel under the alternative prong of Strickland ....
[Taylor] also urges this Court to reexamine the law as to when a defendant is denied due process because he was convicted through the use of false testimony. The Court declines. For [Taylor] to *838 prevail on his claim that due process was violated and post-conviction relief is warranted, he must show that: 1) the testimony given was false; 2) the State knew it was false; and 3) his conviction was obtained as a result of the perjured testimony. See State v. Statler , 383 S.W.2d 534 , 537 (Mo. 1964). [Taylor] asks that the second requirement of the burden be eliminated.
Such a change would lead to the nonsensical result of expecting the State to be able to read the mind of its witnesses to refrain from having convictions overturned when a witness gives testimony that he later learns is false. Additionally, such a change would not be helpful to [Taylor.] In this case, as the basis of his due process violation, [Taylor] alleges that the Charter representative's trial testimony regarding its landline records showing all outgoing calls from victim's Charter landline was false testimony. At the post-conviction hearing, the Charter representative acknowledged that when she testified at trial, she was under the impression that Charter records did contain all outgoing calls; only later did she discover that was not true. There is no dispute that, at the time of trial, the State believed that her testimony was true. Even if this Court chose to revise the burden as [Taylor] urges, he still would be unable to demonstrate that his conviction was obtained as a result of the "false" testimony for the reason already thoroughly discussed: there was overwhelming evidence of [Taylor's] guilt without the testimony of the Charter representative.
(Doc. 29, Ex. II at 5-9) (emphasis and footnotes in original)
Respondent argues that this determination is reasonable and entitled to deference under § 2254(d). (Doc. 29 at 35) Respondent also argues that this claim is meritless, because despite the discrepancies in the records discovered during post-conviction review, "[Taylor] still can point to no evidence of outgoing calls from the victim's home after Taylor left the state." ( Id. at 36) (emphasis in original) Respondent argues that:
Counsel did not act unreasonably in failing to tire the jury by nitpicking inaccuracies in phone records that do not ultimately support Taylor's defense theory.... Even had the trial court known that the phone records contained minor errors, there is no support for the proposition that it would have excluded them for "insufficient foundation" ( [Doc. 19 at] 35). No evidence comes with a guarantee of "one hundred percent accuracy" ( [Doc. 19 at] 34). As Taylor can point to no evidence to prove his assertion that the victim was, in fact, alive after he left the state, he cannot show prejudice in the face of overwhelming evidence of guilt.
As to Taylor's due process claim, he does not assert, as he must, that the State knew their witness's testimony was false at the time it was given. See Napue v. People of State of Ill. , 360 U.S. 264 [ 79 S.Ct. 1173 , 3 L.Ed.2d 1217 ] (1959) (State may not knowingly use false evidence). Taylor, in fact, concedes this point by saying "At the time of trial, Ms. Herbert believed that the Charter records contained all outgoing calls" ( [Doc. 19 at] 27).
( Id. ) (emphasis in original) Respondent distinguishes United States v. Bagley as having dealt with the prosecution's knowing use of false testimony, and further distinguishes Durley v. Mayo as inapposite because it does not discuss the use of false testimony at all. ( Id. at 37)
In reply, Taylor argues that the Missouri Supreme Court made an unreasonable determination of facts for purposes of *839 § 2254(d)(2) by finding that he was not prejudiced under Strickland . (Doc. 46 at 39) Taylor attacks the sufficiency of the evidence as "closer to a 'mole hill' than a mountain[:]"
Again, there were no eyewitnesses to the murders, [Taylor] made no incriminating statements to the police after his arrest, no clear motive was established by the state, and no ballistic or other physical evidence linked him to the crime.... the medical examiner conveniently and suspiciously changed his opinion regarding the time of the death of the victims after learning of [Taylor]'s alibi. Also... the Missouri Supreme Court assigned great weight to [Taylor]'s alleged "confession." Again, this is an unreasonable determination of the facts because this alleged "confession" was to [Taylor]'s brother who later recanted his statements and testified at [Taylor]'s trial that he had been coerced into giving this statement by the police.
Similarly, the other "overwhelming" evidence that the Missouri Supreme Court lists is purely circumstantial, (e.g., [Taylor]'s fingerprints on air freshener, bullets found at victim's home, [Taylor] allegedly throwing something into the sewer, [Taylor] parking his vehicle at his sister-in-law's house, circumstances surrounding [Taylor's] arrest in Kentucky), and not direct evidence of petitioner's guilt. Finally, regarding the speck taken from [Taylor's] glasses, the chemical analysis made no definitive determination that this genetic material was blood... Given the romantic relationship between [Taylor] and the victim, she could have left a speck of DNA on petitioner's glasses in any number of ways. Because the Missouri Supreme Court made an unreasonable determination of the facts under 2254(d)(2), this Court is free to review this ground for relief de novo .
(Doc. 46 at 39-41) Regarding the due process component of this claim, Taylor argues in his reply that "the state should have known that the records custodian's testimony was false." (Doc. 46 at 44) Taylor also cites Tuggle v. Netherland , 516 U.S. 10 , 116 S.Ct. 283 , 133 L.Ed.2d 251 (1995), for the proposition that "a jury's consideration of materially inaccurate information in support of an aggravating factor cannot support a death sentence," and Gregg v. Georgia , 428 U.S. 153 , 96 S.Ct. 2909 , 49 L.Ed.2d 859 (1976), for the statement that "accurate sentencing information is an indispensable prerequisite to a reasoned determination of whether a defendant shall live or die by a jury of people who may never before have made a sentencing decision." (Doc. 46 at 44-45)
After review of the parties' submissions, the trial transcript, and the record of Taylor's post-conviction review proceedings, I find the following:
First, the decision of the Missouri Supreme Court affirming the denial of post-conviction relief is reasonable and entitled to deference under § 2254(d). As discussed in the excerpt of the Missouri Supreme Court's decision, supra , the pillar of evidence before the jury was sufficiently solid as to support Taylor's conviction even absent the use of the phone records. Taylor made the same attempts to undermine that evidence at trial as he makes here, and the jury evaluated them and found them unconvincing. ( See, e.g., Doc. 29, Ex. S at 52-53) (questioning whether Perry Taylor's admission of Taylor's guilt to police was coerced); 18 id. at 53 (attacking *840 probative value of material analyzed on Taylor's glasses); id. at 54 (arguing that use of alias and attempts to avoid police in Kentucky indicative of forgery but not murder); id. (attacking witness' ability to accurately identify firearm allegedly disposed of in sewer by Taylor); id. at 55-56 (accusing forensic examiner of changing testimony in response to Taylor's alibi); see also id. , Ex. Q at 53-56 (cross-examination of forensic examiner on this point), at 56-57 (rehabilitation of same on redirect), and at 57-58 (re-cross of same). Taylor also argues that the evidence of guilt cannot be overwhelming because there is no direct evidence of guilt. However, "[c]ircumstantial evidence is 'intrinsically as probative as direct evidence.' " United States v. Cook , 842 F.3d 597 , 602 (8th Cir. 2016) (quoting United States v. Tschacher , 687 F.3d 923 , 934 (8th Cir. 2012) (further internal quotation omitted).
Second, the discrepancies Taylor's post-conviction counsel identified in the phone records and on which he now relies do not, in fact, establish the falsity of Charter's records. All they establish is that among the nearly four thousand combined entries 19 in the Charter and Sprint call records, a total of five appear on Sprint's but do not appear on Charter's, a total of seven appear on Charter's but do not appear on Sprint's, and a total of seventeen appear on Charter's but were listed under a different number. That could mean the Charter records are less complete than they were represented to be at trial, but it could also mean the same of the Sprint records, or of both simultaneously. Critically, it does not logically refute the central point for which the State admitted the records: that after November 25, 2004, the complete absence of outgoing calls from the victims' home phone supported the proposition that they had been killed prior to Taylor's departure from St. Louis on November 26. Taylor's trial counsel argued at trial that the phone records were incomplete and could not be relied upon to prove a lack of activity at the victims' home; the jury considered that argument and rejected it. ( See Doc. 29, Ex. R at 63, 72-73; see also id. , Ex. S at 51-52) An objection to the admission of the phone records, even with knowledge of their discrepancies, would not have been meritorious and Taylor's counsel team was not ineffective under Strickland for declining to make meritless objections. At best, Taylor's trial counsel might have been able to point to their discrepancies as additional cumulative support for the unsuccessful argument that the phone records did not give a reliable picture of activity at the victims' home. That does not meet Strickland's exacting requirement that but for counsel's alleged error, there was a reasonable probability that the outcome of trial would have been different. Strickland , 466 U.S. at 694 , 104 S.Ct. 2052 .
Third, the due process portion of Taylor's claim fails because a) as previously discussed, he does not establish that the testimony given was false, and b) he does not establish that the State was aware of any falsity, if it existed. Each of the cases *841 he cites on this point deals with the knowing use of false testimony by the State, and his argument that the State "should have known" something of which the testifying witnesses themselves were unaware is completely unpersuasive. Tuggle v. Netherland and Gregg v. Georgia are inapposite on this point both because they deal with the use of aggravating sentencing factors rather than evidence introduced during the guilt phase, but more critically because they deal with " materially inaccurate evidence," not the technical glitches and discrepancies at issue here. Tuggle , 516 U.S. at 14 , 116 S.Ct. 283 (emphasis added).
The Missouri Supreme Court's decision on this claim is reasonable and entitled to deference under § 2254(d). My independent review of the record, including the call log excerpts contained in Taylor's post-conviction review briefs, has not revealed errors "sufficient to undermine confidence in the outcome" of Taylor's trial. Strickland , 466 U.S. at 694 , 104 S.Ct. 2052 . As a result, I will deny Taylor's third ground for relief.
4. The inclusion of evidence regarding blood- and DNA testing of Taylor's sunglasses did not violate his constitutional rights, despite the late disclosure and limited probative value of such evidence, where multiple continuances had already been granted to defense counsel and where the jury was adequately instructed as to the inconclusive nature of the tests concerned .
The Missouri Supreme Court accurately summarized the facts relevant to this claim in its denial of Taylor's direct appeal as follows:
When Taylor was arrested in December 2004, police recovered a pair of sunglasses from a bag in Taylor's possession. On September 15, 2005, Taylor requested notice of whether the State intended to use DNA evidence, the type of DNA testing that would be conducted, and whether the State had physical evidence submitted for analysis or examination.
On May 25, 2006, Taylor filed a motion, requesting the return of his personal property, including the sunglasses. In August 2006, the State took possession of the sunglasses from the police, and three months later in November, the bag and sunglasses were brought to the crime lab for testing. The phenolphthalein test was performed in November 2006, and the DNA tests were performed from December 2006 to January 2007. The DNA report was completed in April 2007.
Taylor received the report from the phenolphthalein test in March 2007 and the DNA report in April 2007. At this time, the trial was set to begin on May 30, 2007. In April 2007, Taylor filed a motion to exclude the evidence of the phenolphthalein and DNA testing based on the late disclosure, and alternatively, if the evidence was not excluded, Taylor requested a continuance.
A hearing was held in May 2007 at which the State explained that they disclosed the reports as soon as they received them and did not withhold the evidence purposely. The trial court overruled the motion to exclude the DNA evidence and granted Taylor a continuance until February 2008 with the "understanding that the request is being made reluctantly and only due to the facts and circumstances that gave rise to this motion."
State v. Taylor , 298 S.W.3d 482 , 501-502 (2009).
Although blood was not visually apparent on the sunglasses, a phenolphthalein *842 test - a presumptive test used to determine if there is a possible presence of blood - revealed a positive result on the sunglasses' nose guard. Because of the small size of the sample, a confirmatory test was not conducted.
The stain on the sunglasses was also tested for the presence of DNA. The analyst could not obtain a full genetic profile because of the small size of the sample. The results from the partial DNA profile eliminated Rowe's children as the contributors. Rowe was not eliminated as a contributor. The partial DNA profile obtained occurs in only one in 12,030 persons in the African-American population. The source of the DNA, whether from blood, hair, or saliva, could not be determined from the test.
In May 2007, Taylor filed a motion to exclude these test results. After a hearing, the trial court overruled the motion to exclude and granted Taylor's request for a continuance to prepare and respond to the evidence. In January 2008, Taylor filed a motion in limine to exclude any evidence that the phenolphthalein test showed that the substance found was or presumptively was blood. The court conducted a hearing under Frye v. United States , 293 F. 1013 (D.C. Cir. 1923), about the admissibility of the phenolphthalein test results and overruled Taylor's objection, allowing evidence of the phenolphthalein test results as a presumptive test for the presence of blood.
At trial, Taylor objected to the admission of this evidence and the trial court overruled the objections. The forensic scientist who conducted the tests testified that the phenolphthalein test is a presumptive test because it also can give a positive reaction to potatoes, rust, bleach[,] and nickel. She emphasized that the substance on the glasses was only "possibly blood" because there was no confirmatory test.
During closing arguments, the State commented that the sample was Rowe's blood, not the children's blood. 20 Taylor *843 objected that the argument was a misstatement of the testimony. The trial court overruled the objection.
Id. at 499-500 (footnote in original).
In his habeas petition, Taylor argues that the introduction of this evidence violated his constitutional rights both a) because of the delay between the sunglasses' seizure and their testing, resulting in unfairly close proximity between the disclosure of the testing and the trial date, and b) because the limitations of the phenolphthalein test diminished its probative value to the point that its introduction denied Taylor a fundamentally fair trial. (Doc. 19 at 42)
With regard to the delay in testing and disclosure, Taylor cites Ashker v. Class , 152 F.3d 863 (8th Cir. 1998), for the proposition that a prosecutor's reasons for late disclosure are among the factors a reviewing court will consider in determining whether that disclosure satisfied due process requirements. ( Id. at 45) Taylor further argues that:
Although the State was aware of [Taylor's] speedy trial request, it inexcusably waited almost two years to send his sunglasses to the crime laboratory for testing and then only weeks before the May 30th trial date disclosed the results. Again, the trial court's denial of [Taylor's] motion to exclude forc

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7253209. Public record. Not legal advice.