Petition for Writ of Certiorari — Leonard S. Taylor, Petitioner v. Paul Blair, Warden

No.

CAPITAL CASE

IN THE

SUPREME COURT OF THE UNITED STATES

LEONARD TAYLOR,

Petitioner,

VS.

PAUL BLAIR, Superintendent,

Potosi Correctional Center

Respondent.

On Petition For A Writ Of Certiorari

To The Eighth Circuit Court of Appeals

PETITIONER’S APPENDIX

KENT E. GIPSON, Mo. Bar #34524

Law Office of Kent Gipson, LLC

121 East Gregory Blvd.

Kansas City, Missouri 64114

816-363-4400 e Fax 816-363-4300

kent.gipson@kentgipsonlaw.com

COUNSEL FOR PETITIONER

TABLE OF CONTENTS

Eighth Circuit Court Opinion

District Court Opinion ...........

Eighth Circuit Court Order Denying Rehearing ............cccceececseeeeesseeeeseesseeeeeeee A-76

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Gnited States Court of Appeals

For the Eighth Circuit

No. 19-2763

Leonard S. Taylor

Petitioner - Appellant

V.

Troy Steele

Respondent - Appellee

Appeal from United States District Court

for the Eastern District of Missouri - St. Louis

Submitted: December 15, 2020

Filed: July 26, 2021

Before SMITH, Chief Judge, LOKEN and MELLOY, Circuit Judges.

SMITH, Chief Judge.

Leonard S. Taylor claimed in a petition for a writ of habeas corpus that his trial

counsel was ineffective for not providing closing argument during the penalty phase

of his capital-murder trial. The district court! denied relief.

'The Honorable Rodney W. Sippel, Chief Judge, United States District Court

for the Eastern District of Missouri. A _ /

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Taylor, though advised otherwise, insisted that his trial counsel forgo closing

argument. Taylor’s informed, voluntary decision thus prevented his counsel’s

reluctant compliance with Taylor’s wishes from subsequently becoming ineffective

assistance of counsel. The nature of the decision to forgo closing argument, whether

fundamental or one of trial strategy,” does not alter this result. Taylor’s ineffectiveassistance-of-counsel claim is procedurally defaulted and therefore barred. Thus, we

affirm the district court’s denial of the petition.

I. Background

In 2004, police found Taylor’s girlfriend Angela Rowe and her three children

dead inside their home. Missouri charged Taylor with four counts of first-degree

murder and four counts of armed criminal action for the killings of Rowe and her

children. While awaiting trial for their murders, Taylor was convicted on an unrelated

charge of forcible rape and sentenced to 100 years’ imprisonment without parole. See

State v. Taylor, 238 S.W.3d 145 (Mo. 2007) (en banc).

The jury for Taylor’s murder trial convicted him on all counts. The next day,

the jury reconvened for the penalty phase of the trial. The state presented evidence

of Taylor’s prior convictions, testimony from the victim in the forcible-rape

conviction, and testimony from Rowe’s and her children’s family.

For the defense, Taylor’s trial team—at his insistence—did not present closing

argument during the penalty phase. And the only mitigating evidence that it presented

was one stipulation as to Taylor’s good behavior in prison. Twice, the state trial court

questioned Taylor’s decisions during the penalty phase:

"In McCoy v. Louisiana, the Supreme Court distinguished between choices that

constitute trial strategy and those that “are reserved for the client.” 138 S. Ct. 1500,

1508 (2018). In this opinion we refer to decisions “reserved for the client” as

“fundamental decisions.” Jd. at 1507, 1508 (quoting Cooke v. State, 977 A.2d 803,

842 (Del. 2009)).

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THE COURT: Mr. Taylor, do you want to come up with your lawyers?

(Whereupon the attorneys approached the bench and the following

occurred outside the hearing of the jury.)

THE COURT: Mr. Taylor, we’re about to proceed with this, the second

stage of the trial, the punishment phase on the jury’s finding of guilt to

four counts of Murder in the First Degree. Just a few moments ago I was

approached by your attorneys who indicated to me that you have

instructed them in this phase of the trial that you do not want them

to—well, let me ask you, first, you’ve given them certain instructions

about how you want them to conduct this second phase of the trial. Why

don’t you tell me what it is that you told them, what limitations you’re

putting on them.

THE DEFENDANT: I have instructed my attorneys not to argue

anything in this portion of the trial, this penalty phase. As a Muslim we

do not ask for other men something they cannot give us or take from us.

I would never ask another man or jurors for a dime which they could

give me, and being that I definitely wouldn’t ask them for my life, which

they can’t take nor can they give. Only Allah can do that. So to concede

to that would be giving them a false sense of authority they don’t have.

Neither they have that nor you. And if it’s Allah’s will I’ll die tonight,

tomorrow, fifty years from now.

THE COURT: The second phase procedure following the second phase,

both sides, the State and your lawyers are allowed to make opening

statements. And the opening statements are basically confined to what

they expect to present as evidence in this second phase of the trial. It’s

my understanding, and I’ll direct this to [trial counsel], you do have

some evidence that you were going [to] present on behalf of Mr.

[Taylor]; is that correct?

[TRIAL COUNSEL]: Well, I’ve discussed this with Mr. Taylor and I

think he is okay with us basically indicating [to] the jury not much more

than we do have some evidence by stipulation regarding his behavior

while incarcerated, and think he’s indicated he’s okay with that.

THE COURT: And that’s correct?

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THE DEFENDANT: That’s the only thing I will allow them to enter into

stipulation as to whatever my conduct has been while incarcerated, or so

forth. So on that matter not either—whatever else will be.

THE COURT: Once the evidence has been concluded then both sides

are going to have an opportunity to argue this case and argue—I guess

they’ll argue the evidence that has been presented. And I’m sure if it

follows, the course followed in the past, the State will be asking the jury

to impose the death penalty. Your lawyers, if allowed, would ask the

jury to spare your life. Are you asking them not to do that?

THE DEFENDANT: Your Honor, I would never ask another man not

to do something they have no power to do. Only Allah can spare my life,

only Allah gave me life. So if they impose a death sentence that means

nothing to me, okay?

THE COURT: I understand. The position you’re taking is going to

severely hamper your attorneys in their efforts to try to spare your life,

do you understand that?

THE DEFENDANT: I’m not going—I wouldn’t ask you to spare my

life, I would not allow them to do that because you have no power to do

that, you have no power to take my life.

THE COURT: I guess my question to you, do you understand you’re

really hamstringing them in terms of presenting a defense for you?

THE DEFENDANT: What I understand is this here, Your Honor, I’m

leaving the power of life and death in the hands of Allah who’s the only

person who has that power. It would not be the prosecutor, no juror, no

one else for my life, only Allah can give that, only Allah can take that.

At birth every man was sentenced to death, it may be a day, it may be a

year, it may be a hundred [years], but you’re guaranteed to die, you

know, so we’re not afraid of that if it be that. It may not be that.

THE COURT: It is your decision, I’m satisfied it’s not a decision forced

on you by anybody. You’re taking this position through your own

volition and this is your decision; is that correct?

A-y

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THE DEFENDANT: I’ma Muslim.

THE COURT: I understand.

THE DEFENDANT: And as we establish ourselves through positive

action and live by that, whatever the course may be, and we except [sic]

that. Now if they want to argue for death, go ahead, but we’re not going

to beg them or anybody else.

THE COURT: I want this record to be perfectly clear this is your

decision.

THE DEFENDANT: It’s my decision. It’s a last decision.

THE COURT: You’ve gone through and communicated to your lawyers

and now you’ve communicated to me it is your decision.

THE DEFENDANT: Yes, sir.

THE COURT: All right.

THE DEFENDANT: Ma sha Allah.

Taylor v. Steele, 372 F. Supp. 3d 800, 861-62 (E.D. Mo. 2019) (sixth alteration not

in original). After a second colloquy with the court clarifying Taylor’s instructions

to counsel, defense counsel read into evidence the written stipulation describing

Taylor’s good behavior while incarcerated.

The jury recommended the death penalty on each first-degree murder count,

and the state trial court sentenced Taylor to death on each murder charge and imposed

consecutive sentences of life imprisonment on the armed criminal action charges.

Taylor filed a direct appeal to the Missouri Supreme Court, which affirmed. Taylor

also moved for postconviction relief that the postconviction court denied. He then

appealed the denial to the Missouri Supreme Court, and it affirmed the

post-conviction court.

5.

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Taylor then petitioned the federal district court for a writ of habeas corpus

based on eight grounds. The district court rejected his arguments but granted Taylor

a certificate of appealability on a single issue: whether Taylor received

constitutionally ineffective assistance of counsel when his trial counsel followed his

directive to forgo closing argument during the penalty phase of his trial. Taylor

appeals the district court’s denial of relief on this basis.

Il. Discussion

“We review de novo the question whether [a] claim is procedurally defaulted.”

Stephen v. Smith, 963 F.3d 795, 800 (8th Cir. 2020) (alteration in original) (emphasis

omitted) (quoting Kemp v. Kelley, 924 F.3d 489, 499 (8th Cir. 2019)). The first time

that Taylor raised the certified ineffective-assistance claim was in his federal habeas

petition. The parties agree that Taylor’s failure to raise it in his state postconviction

motion defaulted his claim.

Federal courts generally cannot “review [the] claims that a habeas petitioner

has defaulted in state court” unless the claim satisfies the Martinez v. Ryan’ exception

to procedural default. Harris v. Wallace, 984 F.3d 641, 647-48 (8th Cir. 2021). Under

the exception, Taylor may overcome the default if: (A) “the state collateral review

proceeding was the ‘initial’ review proceeding with respect to the ‘ineffectiveassistance-of-trial-counsel claim’”; (B) the ineffective-assistance claim is

“substantial”; and (C) postconviction counsel’s ineffectiveness was the “cause” for

the default. Jd. at 648 (quoting Kemp, 924 F.3d at 499).

A. Initial-Review Collateral Proceeding

Taylor satisfies the first requirement because his postconviction motion was his

first opportunity to raise an ineffective-assistance claim. See id. (“Missouri

‘prevent[s] individuals from pursuing claims of ineffective assistance of trial counsel

on direct appeal,’ requiring instead that they make such claims in a post-conviction,

°566 U.S. 1 (2012).

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‘initial-review collateral proceeding.’” (alteration in original) (quoting Franklin v.

Hawley, 879 F.3d 307, 312 (8th Cir. 2018))).

B. Substantiality of Claim

Next, Taylor’s underlying claim for ineffective assistance of trial counsel must

be substantial. See id. To be substantial, “the prisoner must demonstrate that the claim

has some merit.” Jd. (quoting Martinez, 566 U.S. at 14). This means that whether

Taylor’s trial counsel was ineffective under Strickland v. Washington* must at least

be “debatable among jurists of reason.” Harris, 984 F.3d at 648-49 (quoting Miller-

El v. Cockrell, 537 U.S. 322, 336 (2003)).

Thus, whether Taylor has a substantial claim for ineffective assistance of trial

counsel depends on his ability to show two things: (1) Taylor’s trial counsel’s

performance was deficient, and (2) his counsel’s deficient performance prejudiced

him. See Strickland, 466 U.S. at 687. Counsel’s performance is deficient when his

representation falls “below an objective standard of reasonableness.” Barnett v.

Roper, 904 F.3d 623, 631 (8th Cir. 2018) (quoting Slocum v. Kelley, 854 F.3d 524,

532 (8th Cir. 2017)). Upon review, we affirm because Taylor cannot show that his

trial counsel’s performance was deficient.

The parties and the district court addressed the question whether a trial

counsel’s decision to forgo closing argument is a trial strategy or fundamental

decision within the control of the defendant.” Taylor seeks to avoid a procedural bar

“466 U.S. 668 (1984).

*The district court framed the issues for appeal as: (1) “whether the decision to

forego a closing argument at the penalty stage of a capital murder trial is a tactical

decision for counsel or a basic trial right decision for the defendant”; and (2) “[i]f it

is a tactical decision, is trial counsel constitutionally ineffective for complying with

defendant’s request to not make a closing argument at the penalty stage of a capital

murder trial.” Certificate of Appealability at 1, Taylor v. Steele, No.

4:12-cv-02278-RWS (E.D. Mo. 2019), ECF No. 53.

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to his ineffective-assistance claim by contending that the decision to present or forgo

closing argument was a matter of trial strategy and not a fundamental decision. As

such, Taylor’s trial counsel had the ultimate decisionmaking power whether to give

a closing argument during the penalty phase. According to Taylor, because trial

counsel had the ultimate decisionmaking power, counsel erred by following his

client’s directive instead of deciding in the best interest of his client. In essence,

Taylor argues that, though trial counsel will not be ineffective for abiding by his

client’s directives regarding fundamental decisions, trial counsel can be ineffective

for abiding by his client’s directives when the decision pertains to trial strategy. See

Appellant’s Br. at 30-32.

Unlike decisions pertaining to trial strategy, fundamental decisions require

client approval. See McCoy, 138 S. Ct. at 1508; Florida v. Nixon, 543 U.S. 175, 187

(2004) (explaining that, though counsel “undoubtedly has a duty to consult with the

client regarding ‘important decisions,’ including questions of overarching defense

strategy,” counsel also “has authority to manage most aspects of the defense without

obtaining his client’s approval” (first quoting Strickland, 466 U.S. at 688; and then

citing Taylor v. Illinois, 484 U.S. 400, 417-18 (1988))). Fundamental decisions, thus,

undergird autonomy claims, which protect criminal defendants by preventing their

counsel from making certain important decisions without their input. See McCoy, 138

S. Ct. at 1508 (explaining that “a defendant need not surrender control entirely to

counsel” because counsel, “however expert, is still [only] an assistant” (quoting

Faretta v. California, 422 U.S. 806, 820 (1975))); see also Thomas v. Payne, 960

F.3d 465, 471, 474, 476 (8th Cir. 2020) (distinguishing between ineffective-

assistance claims and a “McCoy Sixth Amendment Violation”).

As such, fundamental decisions must be in accord with the client’s wishes.

Trial strategies, on the other hand, are largely in the hands of legal counsel. See

McCoy, 138 S. Ct. at 1508. But contrary to Taylor’s characterization, the distinction

does not resolve whether counsel is ineffective when he has followed the defendant’s

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directions. Cf id. at 1510-11 (refusing to apply Supreme Court

ineffective-assistance-of-counsel jurisprudence because the “client’s autonomy, not

counsel’s competence, [wa]s in issue”).

Fundamental decisions require client approval, and matters of legal strategy are

generally left to counsel; but that does not mean trial-strategy decisions are

impervious to a client’s express prohibition. Cf. id. at 1508 (“Trial management is the

lawyer’s province: Counsel provides his or her assistance by making decisions such

as what arguments to pursue, what evidentiary objections to raise, and what

agreements to conclude regarding the admission of evidence. Some decisions,

however, are reserved for the client—notably, whether to plead guilty, waive the right

to a jury trial, testify in one’s own behalf, and forgo an appeal.” (cleaned up)).

Although counsel may violate a defendant’s right to autonomy by deciding “certain

fundamental decisions regarding the case” without the defendant’s “ultimate

authority,” see Jones v. Barnes, 463 U.S. 745, 751 (1983), it does not follow that

counsel violates a defendant’s right to effective counsel by yielding to the defendant’s

ultimate authority in either a trial strategy or a fundamental decision. Thus, the

distinction, here, is immaterial.

Contrary to Taylor’s assertions, neither Nixon nor McCoy stands for the

proposition that counsel must disregard a competent client’s express directions on

certain decisions to be effective. Nixon permits an attorney to proceed with a course

of action, without being held ineffective, after communicating to a client who is

unresponsive. See generally Nixon, 543 U.S. 175. Itaddresses the circumstance where

an attorney has communicated with his client but has not been given any directions

from the client. Id. By contrast, McCoy prohibits an attorney from disregarding his

client’s directives as to fundamental decisions. McCoy, 138 S. Ct. at 1509 (“When a

client expressly asserts that the objective of his defence is to maintain innocence of

the charged criminal acts, his lawyer must abide by that objective and may not

override it by conceding guilt.” (cleaned up)). Accordingly, McCoy addresses when

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a client has given his counsel directions but counsel ignores those directions. See id.

Here, the client gave his counsel express directions, but, unlike in McCoy, counsel

acquiesced.

Moreover, Taylor’s counsel’s acquiescence to Taylor’s directions, on this

record, was neither a trial strategy nor the absence of one. It was counsel doing as his

client instructed after counsel and the court informed Taylor of the potential

consequences of his decision. Counsel did not waive argument as a strategy but as a

consequence of Taylor’s decision to forgo the opportunity to have counsel speak on

his behalf in opposition to the punishment under consideration.

Ultimately, the case is the client’s, and “{iJt is the role of the lawyer to be a

professional advisor and advocate, not to usurp his client’s decisions concerning the

objectives of representation.” United States v. Wellington, 417 F.3d 284, 289

(2d Cir. 2005) (cleaned up). We thus hold that Taylor’s assertion that his trial counsel

was ineffective by not giving closing argument—at Taylor’s direction—lacks merit.

Cf. id. (“[T]o the extent that defendant instructed his counsel to pursue a course of

action that defendant now complains of, there was no abridgement—constructive or

otherwise—of defendant’s Sixth Amendment right to effective assistance of

counsel.’’).°

‘Cf. Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000) (“[A] defendant who

explicitly tells his attorney not to file an appeal plainly cannot later complain that, by

following his instructions, his counsel performed deficiently.”); Frye v. Lee, 235 F.3d

897, 906-07 (4th Cir. 2000) (refusing to hold trial counsel ineffective when the

defendant directed his lawyers to “not to allow his family to aid in mitigation” despite

his lawyers’ “repeated” explanation of the possible consequences thereof); United

States v. Masat, 896 F.2d 88, 90, 92 (5th Cir. 1990) (rejecting a defendant’s

ineffective-assistance-of-counsel claim though his counsel “generally pursued a

course of defense that seemed likely to lose the case” because that “course was in

accordance with [the defendant’s] wishes”; it was “apparent” that the defendant was

asking the court “to permit a defendant to avoid conviction on the ground that his

lawyer did exactly what he asked him to do”); Mulligan v. Kemp, 771 F.2d 1436,

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This record shows counsel advised Taylor of the consequences of his directive

to counsel to provide no closing argument during the penalty phase of trial. Based on

the court’s colloquy and counsel’s advice, Taylor made his choice with eyes open.

See Faretta, 422 U.S. at 835 (“Although a defendant need not himself have the skill

and experience of a lawyer in order competently and intelligently to choose

self-representation, he should be made aware of the dangers and disadvantages of

self-representation, so that the record will establish that ‘he knows what he is doing

and his choice is made with eyes open.’” (quoting Adams v. United States ex rel.

McCann, 317 U.S. 269, 279 (1942))). Taylor has not asserted he lacked competence

at the time he directed counsel to forgo closing argument.

This outcome allows a defendant to make choices to his own detriment. But the

Supreme Court has similarly stated (in the context of allowing defendants to refuse

assistance of counsel altogether):

The defendant, and not his lawyer or the State, will bear the personal

consequences of a conviction. It is the defendant, therefore, who must

be free personally to decide whether in his particular case counsel is to

his advantage. And although he may conduct his own defense ultimately

to his own detriment, his choice must be honored out of “that respect for

the individual which is the lifeblood of the law.”

Id. at 834 (quoting J/linois v. Allen, 397 U.S. 337, 350-51 (1970) (Brennan, J.,

concurring)); see also Weaver v. Massachusetts, 137 S. Ct. 1899, 1908 (2017)

(explaining that, although self-representation often increases the likelihood of an

unfavorable outcome, the “right is based on the fundamental legal principle that a

defendant must be allowed to make his own choices about the proper way to protect

1442 (11th Cir. 1985) (“{I]}f [counsel] is commanded by his client to present a certain

defense, and ifhe does thoroughly explain the potential problems with the suggested

approach, then his ultimate decision to follow the client’s will may not be lightly

disturbed.”).

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his own liberty”); Martinez v. Ct. of Appeal of Cal., 528 U.S. 152, 165 (2000) (Scalia,

J., concurring) (“Our system of laws generally presumes that the criminal defendant,

after being fully informed, knows his own best interests and does not need them

dictated by the State.”).

C. Postconviction Counsel

Last, Taylor would also have to show that his postconviction counsel was

ineffective for failing to raise this ineffective-assistance-of-trial-counsel claim. But,

seeing as Taylor has not shown that his underlying ineffective-assistance claim is

substantial, we do not reach the third requirement of the Martinez exception.

Ill. Conclusion

Taylor’s counsel was not ineffective for abiding by his client’s informed

directive not to present a closing argument, whether construed as trial strategy or as

a fundamental decision. Accordingly, we affirm the district court because Taylor’s

underlying ineffective-assistance claim lacks merit, procedurally barring his claim.

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Caution

As of: March 15, 2022 1:59 PM Z

Taylor v. Steele

United States District Court for the Eastern District of Missouri, Eastern Division

March 31, 2019, Decided; March 31, 2019, Filed

No. 4:12 CV 2278 RWS

Reporter

372 F. Supp. 3d 800 *; 2019 U.S. Dist. LEXIS 65493 **; 2019 WL 1440407

LEONARD 8. TAYLOR, Petitioner, v. TROY STEELE,

Respondent.

Subsequent History: Motion denied by /ay/ar v. Steele,

2019 US. Dist. LEXIS 113098, 2019 WL 2998997 (ED

Mo., duly , 2019}

Affirmed by 7aviorv. Steele, 2021 U.S. App. LEX

22082 (8th Cit, Mo., duly 28, 2027)

Core Terms

argues, records, trial court, post-conviction, death

penaity, trial counsel, blood, juror, murder, tests,

hearsay, continuance, phone records, sentencing,

calendar, closing argument, notations, reliable, merits,

defense counsel, state court, ineffective, shackling,

habeas petition, guilt, penalty phase, constitutional right,

outgoing call, deposition, voir dire

Case Summary

Overview

HOLDINGS: {1]-Petitioner's right to a speedy trial was

not violated by the grant of multiple continuances

because the continuances were granted at the request

the defense for the purpose of ensuring that he would

be effectively represented at his trial; [2]-The inclusion

of evidence regarding blood and DNA testing of

petitioner's sunglasses did not violate his rights, despite

the late disclosure and limited probative value of such

evidence, because multiple continuances had already

been granted to defense counsel and the jury was

adequately instructed as to the inconclusive nature of

the tests; [3]-The exclusion of a prospective juror who

expressed general cpposition to the death penalty did

not violate petitioner's constitutional rights; the juror

failed to clearly assert the ability to set aside her beliefs

and follow the law in considering the full range of

applicable punishment.

Outcome

Petition for writ of habeas corpus denied. COA issued.

Counsel: For Leonard S. Taylor, Petitioner: Kent E

Gipson, LEAD ATTORNEY, LAW OFFICE OF KENT

GIPSON, LLC, Kansas City, MO; Kevin L.

Schriener [**1] , LEAD ATTORNEY, LAW AND

SCHRIENER, LLC, St. Louis, MO.

For Troy Steele, Respondent: Katharine Anne Dolin,

Stephen D. Hawke, LEAD ATTORNEYS, ATTORNEY

GENERAL OF MISSOURI, Jefferson City, MO.

Judges: RODNEY W. SIPPEL, UNITED STATES

DISTRICT JUDGE.

Opinion by: RODNEY W. SIPPEL

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372 F. Supp. 3d 800, *800; 2019 U.S. Dist. LEXIS 65493, **1

Opinion

[*806} MEMORANDUM AND ORDER

This matter is before me upon the petition of Missouri

state prisoner Leonard Taylor for a writ of habeas

x S.C F £254. (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), 1 will deny the petition

for the reasons set forth below.

BACKGROUND

7. Investigation & Arrest

On the evening of December 3, 2004, police

investigated the St. Louls 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 mailf,]" and that all the windows and doors were

(4) With the fire

department, ["*2] the investigating officers forced entry

locked. the assistance of

into the house through a window. (/d:)

Inside, they discovered the bodies of Rowe and her

children: Alexus Conley, age ten; Acqreya Conley, age

six; and Tyrese Conley, age five. (/a., Ex. P at 24) Each

had sustained gunshot wounds to the head. (/o.) Rowe

had sustained additional gunshot wounds to the torso

and left arm. (/o, 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. (/d., 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.

(42) Taylor then became a person of interest within the

investigation. (/a!, 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 [**3] Bradley."

(Doc. 29, Ex. P at 21) Using cell phone records, the

that

subsequently traveled from California to Kentucky. (/d.)

investigating officers determined Taylor

the

investigating officers set up surveillance of several

In conjunction with United States Marshals,

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. (/¢. at 12) The car

was stopped and Taylor was subsequently arrested. (/¢.

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. (/al, Ex. at 15-17)

[*807] Taylor was charged with four counts of firstdegree murder and four counts of armed crimina! 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 [**4] sex

offender to a prison term of one hundred years without

parole. See State v. Taylor, 236 S.W.3d 148 (Mo, 2007}

(summarizing underlying facts and affirming conviction

AH

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372 F. Supp. 3d 800, *807; 2019 U.S. Dist. LEXIS 65493, **4

on direct review); see also Tayior ¥. State, S44 SV. So

oe ef. a °

a >) 1974

77) (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

fape case, and testimony from family members of

Angela Rowe and her children. (/¢. 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.

(/e. at 5-6, 12, 19) The jury deliberated for three hours

before recommending the [**5] death penalty on each

of the four counts of first-degree murder. (/a 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. (/d. at 21-22)

3. Direct Appeal

Taylor raised eleven grounds in his direct appeal. (Doc.

29, Ex. U at 2) | 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.” (/o. 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. (/d. 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 [**6] granted to his defense counsel. (/¢.

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. (/o. 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. (/d. 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. (/a@ at 133)

A-[S

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372 F. Supp. 3d 800, *808; 2019 U.S. Dist. LEXIS 65493, **6

The Missouri Supreme Court? addressed each of

Taylor's claims on the merits and affirmed the trial

court's judgment on October 27, 2009. Sale ¥ Jayne,

298 SW. 3d 482 (Mo, 2909),

4. Post-Conviction Review

Taylor raised eighteen grounds in his [**7] 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 Tayior 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 fram _crossexamination 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 postconviction court denied Taylor's motion for relief on

September 19, 2011. (Doc. 29, Ex. CC at 38-69)

4. Appeal of Post-Conviction Review

Taylor appealed the denial [**8] of post-conviction relief

to the Missouri Supreme Court. (Doc. 29, Ex. FF) He

‘Because Taylor was sentenced to death, the Missouri

Supreme Court held exclusive appellate jurisdiction. See A/c

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. (/a. 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. (/¢ at 41-42,

117-129, 130-138) The Missouri

affirmed the post-conviction court's decision on October

30, 2012. (Doc. 29, Ex. Il)

Supreme Court

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 Sith Amendment of the Lintied States

sonstitution 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. (/¢. at 13-21)

Third, that his trial

ineffective for failing to object to the admission of phone

counsel was constitutionally

records and for failing [**98] to adequately investigate

identify their

examination, and that his rights to due process of law

those records to utility for crossand to be free of cruel and unusual punishment under

the fou

violated by allegedly false testimony given by a phone

records custodian. (/d. at 21-42)

teenth [*B09] and Ejgith Amendments were

Fourth, that his constitutional rights to due process of

law and a fundamentally fair trial under the Avi, Sixth,

and Fourteenth Amenaments were violated when the

Ai-lb

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372 F, Supp. 3d 800, *809; 2019 U.S. Dist. LEXIS 65493, **9

trial court denied his motion to exclude forensic test

results on the basis of their late disclosure and allegedly

misleading nature. (/a. at 42-50)

Fifth, that his constitutional rights to due process of law

and to be free of cruel and unusual punishment under

the SRY,

violated by the exclusion of a prospective juror on the

wena, and Fourteenth Amendmerts were

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 crue! 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. [**10] (/o 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. (4d at

58-59)

Eighth,

ineffective for failing to disregard Taylor's directive to not

that his trial counsel was constitutionally

make a closing argument at the penalty phase of the

trial. (4a. 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. “/arringtan v. Richter, 562 U.S. 86.

92,131 8. Ct 7701781. Ed. 2d 624 (2011) (“Under 28

USC. § 2254), 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." “arri7g/a:,

562 11.8. af 102.

A federal court's power to grant a writ of habeas corpus

is governed by 28 U.S.C. § 2254/c), which provides:

An application for a writ of habeas corpus on behalf

of ["*11] 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.

ZEUS. § 2254),

The Supreme Court construed § 2254/0) in Mi/fams_¥.

382 (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 ta 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.”

Willams, 529 U.S. at 473. Under the "unreasonable

application” prong of § 2254/07), 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 [**12]

A-l7

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372 F. Supp. 3d 800, “810; 2019 U.S. Dist. LEXIS 65493, **12

state prisoner's case." /a. Thus, "a federal habeas court

making the 'unreasonabie application’ inquiry should ask

whether the state court's application of clearly

established federal law was objectively unreasonable.”

‘a af 409. 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." / at 442.

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." 2%

USL F

petition “that have not been presented to the state

2eoset}. In addition, claims in a habeas

courts, and for which there are no remaining state

remedies, are procedurally defaulted."

Luebbers, 475 F.3d 985, 976 (th Cir 2007). "Unless a

habeas petitioner shows cause and prejudice or that he

SKIICOFT ¥.

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." /¢.

Finally, several of Taylor's claims assert that he

received constitutionally ineffective assistance of

counsel. To prevail [°*13] on a claim alleging ineffective

assistance of counsel, a defendant must satisfy the twopart test of Strickland v. Washinaton, 486 U.S. 668, 104

&. Of 2052, 80 lL. Ed. 2d 674 £4984), For a convicted

defendant to prove that his counsel was ineffective, the

first that the

performance was deficient. Strick/and, 466 U.S. at 687.

defendant must show counsel's

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 Sixi/

Amendment.” id. A defendant can demonstrate that

counsel's performance was deficient where counsel's

performance "[...] ‘fell below an objective standard of

reasonableness.” Yigarns v. Smith, 539 US. 510 522.

ae a 471 (2005) (quoting

Kind, 466 U.S. af 644). But "L...] [strategic] choices

made after thorough investigation of law and facts

relevant to plausible options are virtually

unchallengeable." Uniied Siates v. Rice. ¢i9 F.3d 887,

89? (Bh Cir. £2086) (quoting Sirekland, 486 U.S. a

o84. And "[...] [there] is a ‘strong presumption that

counsel's conduct falis within the wide range of

assistance." /d

reasonable _ professional (quoting

Stichland, 453 U.S af G89. Vf the defendant fails to

show that his counsel was deficient, the court need not

address the second prong of the Sitrick/and test. Brow)

y, United States, 311 F.3d 879, 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." [*°14] Strickland, 466 U.S. af 637. “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." /¢. af 694.

[811] The Eighth Circuit has described the Sirickland

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

United Siates, 207 F.3d_ 1923.

2000).

of the test.” Sells vy,

na , en

1027 (8th Cir.

{8th Cir. When evaluating counsel's

performance, the court "must indulge in a_ strong

presumption that counsel's conduct falls within the wide

range of reasonable assistance."

Strickland, 466 U.S. at 682. Considered objectively,

counsel's performance is gauged by "whether it was

professional

reasonable ‘under prevailing professional norms' and

‘considering all the circumstances." Fieids, 201 F.3d at

/-/8

Page 7 of 63

372 F. Supp. 3d 800, *811; 2019 U_S. Dist. LEXIS 65493, **14

102? (quoting Sirickiend, 460 U.S. at 688). [Wel] avoid

making judgments based on hindsight.” /a. A reviewing

court's "scrutiny of counsel's performance must be

highly deferential." Sirck/end, 400 US. at 689.

ANALYSIS

7. An alleged violation of Taylor's state statutory rights is

not cognizable in 2a federal habeas [**15] 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.” fo. Rev.

also argues that this delay violated his federal

constitutional right to a speedy trial under the Sixt and

Fourteenth Amendments, (Doc. 19 at 5-6}

The Missouri Supreme Court summarized the facts

relevant [16] 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 [**17]

continuance based on the complexity of the capital

Taylors counsel requested a

murder case, the need for extensive discovery for

both the guilt and penalty phases, and the

additiona! 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.

A-19

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372 F. Supp. 3d 800, *812; 2019 U.S. Dist. LEXIS 65493, **17

In July 2006, Taylor's trial counsel filed a mation to

time for

After a

hearing, the trial court overruled the motion. A

continue, requesting additional

investigation and preparation for trial.

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

raised [**18] 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

taken of the arguments

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. favor, 298 S

2OOF),

S.W.3d 482 502-503 (Mo. bane

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. Ciark v. Long, 87¢

DW2d 932. OF | D. 7994). Only after

the 180 day period expired and the court had, in

Vio. Apo. SL

[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 ['"19] was caused solely by the state's

Taylor's]

sunglasses were seized from his luggage on the

late disclosure of DNA evidence.

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. [/a@, 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

192 194 (Lie inn ) SE Ay ee

ko ie) POG {F “12 OD 290 Of, COMPIOIWeA

44 OG B02 /IAe oe

2a O9¢, 296 {ve a IGS

(/@. at a Taylor cites Simiumons wv. SE

US. 377, 88 §. Ct. 967, 19 L. Eo. 20 1247

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.

4é (halding

that defendant's self-incriminating testimony offered in

19 at 12; see also Simmons, 390

support of his motion to suppress evidence on oust

Amenoment grounds could not later be admitted against

him at trial). Taylor also cites Atarshai/ v. State, 759

state v. Allen, 205 Ore.

» 219, 134 P.3d 976 (Or. App. 2006), and S

Wamsley, 71 Okie App. 3d G07, 594 N.E.2d 1123 (Ohio

7991), as support for his argument that "it is

E A 20 ‘a & 65 H {n. A DY. 2007) 7 -

fale v.

fundamentally unfair to place [**20] [sic] a defendant...

to either go to trial unprepared or waive his right to a

speedy trial... [A] continuance that is compelled by a

K-20

Page 9 of 63

372 F. Supp. 3d 800, *813; 2019 U.S. Dist. LEXIS 65493, **20

state's lack of diligence in providing discovery must be

charged against the state.” (/a. at 12)

Taylor also argues that the UMDDL:

{Created} a liberty interest entitling [Taylor] to

due process protection under the

v Jones, 445 US.

iG 199 9 of 4954 6 el Se SSO (FOR)

480, PAY OD Ue fe, OO Ll. eth. 2G BOL (loos,

procedural

Fourteenth Amendment VWihak

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 taw.

Blackledge v. Perry 447 US. 27, 30-31, 84 8. CE

2098, 40.1. Ed. 2d 628 (4974).

(/d.)

Finally, Taylor argues that he has a freestanding

constitutional claim under the

determined by Sarker v. Wingo, 407 U.S. S14, 92S. Ct

2782. 33 L.Ed. 2d 104 (fB7 25

Sota Amendment as

Under the Sarker test,

assess the length of delay, the reasons for the

reviewing courts must

delay, the defendant's assertion of the right, and

prejudice. 4% at 530. Each of these four factors

weigh heavily in favor of [Taylor] on this Six’h

Amendment claim.

First, since the length of the delay was over three

years, this lapse of time is presumptively

prejudicial.? See State ex rel Garcia v. Goldman,

316 SW.3d 907, 311 (Mo. banc 2040), The

?{Taylor] was also prejudiced, as he alleged in one of his pro

sé motions to dismiss, because the videotaped statements of

defense witnesses Gerjuan Rowe and Beverly and Sherry

Conley taken by police either mysteriously disappeared or

were accidentally erased. [Doc. 29, Ex. C at 74-75; Ex. Q at

15-16).

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.

(/d. at 13) (footnote ["*21] 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 UNMPDL, section 217.450-485. Tne UMDDL,

including the right to be tried within 180 days, is

reviewed de novo. Sifafe v. Nichols, 207 S.W3¢

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 277.460 provides that:

[*814] Within one hundred eighty days after

the receipt of the request and certificate,

pursuant to sections 277.450 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. baric 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. /a@ Once a

A2I

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372 F. Supp. 3d 800, *814; 2019 U.S. Dist. LEXIS 65493, **21

defendant invokes the right to counsel, [**22]

counsel has the authority "to seek reasonable

continuances for the purpose of assuring effective

assistance of counsel.” /a.

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 triai. 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 Sax Amendment of the United States

Consituuon and Mo. Const. art. 1, § 18(a). The

United States and Missouri constitutions provide

equivalent protection for a defendant's right to a

speedy trial. Siafe ex rei Nickee v. Riley, 240

S.Wi3e 720, 7229 (Mo. bane 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. /d-

It is undisputed that the delay here [**23] 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.

yi, 293 SW 3a al S03-5°4 (footnotes omitted);

(see a/so 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. Caspar), 39 F.3d 204, 207

(8th Cir. 2004 [sioP} see also Shigemura

No 4:07-CV-459 (CEI), 2007 US. Dist. LEXIS

GG659, 2007 Wk 2736306, at "4 (E.D.Mo.

September [875] 17, 2007) ("Issues concerning

the interpretation and application of a state law are

not cognizable in federal habeas review.")

(4a. 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: [**24]

Taylor fails to explain how the Missouri Supreme

Court unreasonably applied the standard set forth

in Barker vy. Wingo, 407 US. 514, 92 S. Ct 2182

JG L. Ea 2d 107 (7977)... 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

“Respondent cites Poe v. Caspari as a 2004 case. It was

1994. See Poe_39 F.3d 204. | therefore infer that

this is typographical error.

decidad in

A-24

Page 11 of 63

372 F. Supp. 3d 800, *815; 2019 U.S. Dist. LEXIS 65493, "24

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 vo &rlien, 556 UWS. 81 GG 129 S&S. Ct

[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.

1283, 173 1, BG. éd 23% (2009) (internal quotations (jg. at 25)

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. [**25] 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.

(/@. at 15-16)

In reply, Taylor argues that Poe v. Caspari does not

control in this case and that ! 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 A‘abama v.

Rozeman S33

Ed. 20 188 (2007). ln Bozeman, the Supreme Court (//_ a7

granted discretionary review to address an

f-2Z4

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 f § 1G cl. 3 of the United Staies Censitiution....

The fact that Missouri is a signatory to the UMDDL

with seven other [**26] states makes the UMDDL a

compact.

The UMDDL is intended to be construed in

harmony with the Interstate Agreement on

Detainers (IAD). Stafe ex rel Kernp v. Hodge, S29

S.Wi2d 333, 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. [*B16] Srown v. Woht 708 F.2d 902,

433, 438, 101. 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... tt is ultimately the federal

court's duty to interpret and apply congressionally

approved compacts given their federalized nature.

Delaware River Joint Tolt Bridge Commission ¥.

Colburn, G10 1S. 419, 427, 80S. Ct 1038, 84 £.

Ed. 1287 (1940)...

Q

e,

Third... the {state court decisions regarding] the

Page 12 of 63

372 F. Supp. 3d 800, "816; 2019 U.S. Dist. LEXIS 65493, “*26

UMDDL arbitrarily deprived petitioner of a liberty

interest guaranteed by the \

ine Sourfeenth Amendnent See Hicks v.

Oklahoma, 443 [sic US. 343, 346, 100 S. Ct.

2227, 65 L. Ed. 2d 175 (1980). \n 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 US. 20. 30-31, 94 §.

Cr 2098, 40 L. Ed. 2d BE (TG7A),

.. there is no relitigation bar under 2254/0} 7} 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]

to seek DNA testing of petitioner's

This delay, [**27]

necessitated a continuance delaying the trial

failing

eyeglasses. by _ itself,

beyond the one hundred eight (180) day window, in

clear violation of the UMDODL....

Supreme Court, in addressing a separate claim that

the Missouri

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 §01-502.

‘Taylor cites Hicks in his reply as 443 U.S. 343. That citation

leads to Federal Open Market Committee of Federal Reserve

System v. Merrill, 443 U.S. 340, 99 S. Ct. 2800, 61 L. Ed. 2d

587 (1979), a case governing the Freedom of Information Act's

interaction with trade secrets and having no applicability to the

case at bar. The correct citation for Hicks is 447 U.S. 343, 100

S. Ct. 2227, 65 L. Ed. 2d 175. | therefore infer that this is

typographical error and that Taylor does not attempt to rely on

Merrill.

. 7. te fay ak

GHEE LiOCES CWUSE Os

(/d. 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/c);7) and (a2).

See Wiggins, 539 US. at 528.

In assessing prejudice, the Missouri Supreme Court

merely notes that no prejudice could be established

because [Taylor] was imprisoned on other charges.

£254(¢) relitigation ['*28] bar to this

Court's de novo review of the issue of prejudice for

There is no

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 Srnth vy. Hooey, 393 U.S.

374, 379, 89S. Ct 873, 21 4. Ed. 2d 607 (1969).

One of the policy considerations at fhe 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. /d.

(/@. at 29-31).

Having carefully reviewed the parties' briefs, the

Missouri Supreme Court's decision, and the underlying

ALY

Page 13 of 63

372 F. Supp. 3d 800, *817; 2019 U.S. Dist. LEXIS 65493, **28

legal file, | 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

aspar, 39 F.3d 204, 207 (1994

(internal citations omitted).

petition.” Foe v ¢

Second, Taylor's argument that Poe /*"297 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 Afo. 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) (cing State.

S.Wi2d 353, 359 {Mo banc

The UMDDL was never considered and

OX Fel.

eae Hon Je, 622 §

approved by Congress; therefore, it is not a "compact"

within the meaning of the Compact Clause of the United

Cuyler ans, #49

433,439, 131 S.Ct. 703, 66L Ed 2d 641 (7981) ("The

requirement of congressional consent is at the heart of

the Compaci Clause’).

vier to Brown v. Wolff 706 F.2d

902 (9th Cir. , and to C. av. Nash, $73 US.

776, 105 S Ct 3407, B7 L Ed. 2d 516 (7985), are

unavailing because they each deal with applications of

the IAD, not the UMDDL. Hicks v. Ok/ahoma, 447 US.

343, 100 § Cl 2227, 651. Ed, 29 175

the Supreme Court reversed a state sentence imposed

Taylor's citations to Cv)

(7280), in which

under an unconstitutional enenens scheme, and

Blackled Peiry, 497 U8 21, 94S. Ci 2098, 40 £.

fge ¥,

Sd. 2¢ 628 (i974), which considered a due process

claim raised by a state’s retaliatory prosecution after a

prisoner asserted his right under a state statute te a de

novo trial, are even farther removed from the claim

at [30] bar and have no applicability.

Delaware River cuts against Taylor, not in his favor:

"(The] construction of such a compact sanctioned by

Article d is 10, Ck /GUSE Ft of he

‘ion, involves a federal ‘title, right, privilege, or

Congress by virtue of

Constiti

immunity’ which when ‘specially set up or claimed’ in a

state court may be reviewed [in federal court.]"

Delaware River Joint Toll Borage Commission _«.

Colburn, 310 U.S. at 427 (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 ["*31] of same)

Fourth, Taylor fails to establish that his constitutional

right to a speedy trial was violated under the standard

established by Sarkerv. Wingo, 407 U.S. 514, 92 8. Ct.

2182, B39 L. Ed 20 107 (1977)

“{length] of delay, the reason for the delay, the

. The Wingo factors are

defendant's assertion of his right, and prejudice to the

defendant." 4% a? 530. No single factor is dispositive:

Aas

Page 14 of 63

372 F. Supp. 3d 800, *818; 2019 U.S. Dist. LEXIS 65493, **31

“{rather],

considered together with such other circumstances as

they are related factors and must be

may be relevant.” 4” af 323. 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 fast,

because the inability of a defendant adequately to

prepare his case skews the fairness of the entire

system.

Wingo, 407 U3. at 532. |n 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. [**32] 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

actuaily 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 excerpis of Gerjuan Rowe's deposition that were

read to the jury at trial. (See fo, 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 (crossexamining police detective on same but declining to

ask [**33] 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 circumsiances 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 LAS. at 530+

5.37 (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

1, 556 U.S. BH,

(73 L, Ed, 20 231 (2009) (reversing

his counsel's delay. See Vernent v. Brie.

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 [**34] 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 Mingo. | 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.

A-2b

Page 15 of 63

372 F. Supp. 3d 800, *819; 2019 U.S. Dist. LEXIS 65493, **34

As a result, | 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 [**35]

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.” Safe » Kemp, 212 SW! 3d 135, 146 (Mo.

bance 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! Super Markets, Inc... 891 §.W2d

177, 720 (Mo. bane 1995). Exceptions to the

general prohibition against hearsay may apply

when circumstances assure the trustworthiness of

the declarant's statement. /o. 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 ve

DWOCESS CISC.

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 expiain the

event; and the declarant must perceive the event

h 265 S.W.3d

874, 872 (Mo. Ape. 2008) (etting 2

McCormick [**36] on Evidence § 271, at 251 (6th

ed. 2006)). These statements have [*820] certain

indicia of trustworthiness to support their

with his own senses. Svafe «Sr

admissibility. fol! Errors in memory and time for

calculated misstatements are not present because

the statements are made as declarant perceives

the event or immediately thereafter. /o. 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." /¢

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. Bel 950 S.W.2d 482

482 (Mo. bare 1297). 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.” /¢.

A hearsay statement may also be admissible as a

verbal act. State v. Copeland, 928 S.W.2d 828 (Mo.

A-27

Page 16 of 63

372 F. Supp. 3d 800, *820; 2019 U_S. Dist. LEXIS 65493, **36

banc 1296 See Copeland yv. Washington 232

statements written or oral that have independent

legal significance or [**37] effect. See fsitafe of

we

Lastly, an out-of-court statement may be admitted

pursuant to the constitutionally based exception in

the ove 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.” Size v.

Fiutciuson, 987 &Wo2d 7a7, 7O1 (Mo, bare 1997)

(citing to Chambers v. Miss i, 470 US. 284,

JON, 93 §. Cl 1038, 35 £. Ed. 2d 297... (7974).

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." /¢.

(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. Siate

vy. Middleton, 998 S.W.2d 820. $28 (Ma. banc

7.929}.

...Gerjuan’s Payphone Conversation

Taylor argues the trial court abused its

discretion [**38] 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 Que process

ciause. 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 [*621} 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 | was supposed to have been on my way

that way, but by my car not being legal and by

Jennings [**39] police being ass holes, | didn't just

go over there.

Q. But you knew she was at a pay phone then on

the —

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