Black v. Falkenrath

BRENT BLACK Petitioner, v. DORIS FALKENRATH, Respondent.

No. 2:21-4207-NKL

United States District Court, W.D. Missouri

December 30, 2022

ORDER

NANETTE K. LAUGHREY United States District Judge

Before the Court is Petitioner Brent Black's petition for a writ of habeas corpus. Doc. 1. Mr. Black was convicted for child abuse in the first degree and murder in the second degree in Pulaski County, Missouri. While Mr. Black originally pursued four theories of habeas relief before this Court, the only one that remains is his claim that his lawyer in his state criminal trial was ineffective for failing to request a jury instruction for the lesser included offense of involuntary manslaughter in the first degree.^[1]

The Court previously ordered that an evidentiary hearing was needed to resolve Mr. Black's procedural default. See Doc. 19. However, after the Supreme Court decision in Shinn v. Ramirez, 142 S.Ct. 1718 (2022) this Court ordered briefing on whether the evidentiary hearing could proceed, and if the Court could grant Mr Black's claim without an evidentiary hearing. Doc. 24. For the reasons discussed below, the Court concludes that it may not hold an evidentiary hearing on the merits of Mr Black's ineffective assistance of counsel claim; Mr. Black is limited to the evidence in the state court record. Looking to that evidence, Mr. Black's claim of ineffective assistance of trial counsel fails, and his writ of habeas corpus is DENIED.

I. BACKGROUND

The Court previously provided a detailed background. See Doc. 19, at 1-5. What follows are only the facts relevant to Mr. Black's remaining theory of habeas relief.

A. Underlying Facts

Mr. Black's girlfriend (“B.G.”) had a child (“S.G.”) from a previous relationship. On January 25, 2013, S.G.'s biological father returned S.G. to Mr. Black and B.G. around 7:00 pm. After S.G. and B.G. went to sleep, Mr. Black stayed awake watching television.

Mr. Black told the Rolla Police that, at about two in the morning, he heard S.G. crying. He gave her a bottle, changed her diaper, and laid her back down in the crib. After another hour, Mr. Black heard S.G. making some babbling sounds and coughing, but he was not concerned because she had a cold when she returned from her biological father's. When Mr. Black checked on S.G. a few minutes later, her face was blue. He checked to see if there was anything in her mouth. While he could not see anything, he felt an object with his finger. He unsuccessfully tried to remove the object with his finger, and then ultimately removed a baby wipe from her throat with pliers. After unsuccessfully trying CPR, Mr. Black carried S.G. to B.G. Mr. Black tripped while carrying S.G. to B.G., and fell to the ground with S.G. in his arms. Mr. Black yelled to wake up B.G. and called 911 from a neighbor's apartment.

First responders arrived and found that S.G. was not breathing and had no pulse. A paramedic intubated S.G. First responders noted a large bruise on S.G.'s forehead. S.G. was admitted to Children's Mercy Hospital and provided life support. After an examination indicated S.G. was brain dead, her life support was removed. S.G. died on January 28, 2013.

B. Trial

Mr. Black was charged with child abuse in the first degree and murder in the second degree for killing S.G. through the commission of a felony. Two experts supported the prosecution. Dr. Atzemis, a consultant with experience in child abuse cases, reviewed hospital records, spoke to medical providers, and physically examined S.G before S.G.'s death. Dr. Atzemis observed multiple bruises on S.G.'s head and face. Dr. Atzemis opined that S.G.'s injuries were most likely the result of abusive head trauma caused by another person. Dr. Atzemis “wouldn't expect” the injuries to form because of a child being held by an adult falling onto a tile floor or by the lack of oxygen due to choking on a baby wipe. Furthermore, after S.G.'s death, Dr. Case, a medical examiner, performed an autopsy. Dr. Case testified that the injuries would have immediately knocked S.G. unconscious, and that S.G. died from head injuries caused by multiple nonaccidental impacts.

Mr. Black's case was supported by the testimony of Dr. Young, a forensic pathologist and former medical examiner serving the Kansas City metropolitan area. Dr. Young testified that the medical evidence suggested that S.G.'s death was caused by a lack of oxygen to the brain, and overall concluded that S.G.'s injuries were consistent with Mr. Black's testimony.

The jury deliberated for approximately seven and a half hours. Twice during the deliberations, the jury indicated they were at an impasse and asked what to do. During deliberations the jury asked: (1) “[w]hat is the definition of murder in the second degree?”; (2) “[c]an we agree to a lesser charge?” The Judge responded, “[t]he definition of murder in the second degree is contained in Instruction No. 7. You are to consider the [i]nstructions only as provided.” The jury found Black guilty of both counts. He was sentenced to consecutive terms of 12 years for child abuse in the first degree and life imprisonment for murder in the second degree.

C. Appellate History

Mr. Black filed a direct appeal, and the Missouri Court of Appeals affirmed his conviction and sentence. Mr. Black then filed a timely pro se motion for post-conviction relief under Missouri Supreme Court Rule 29.15 in the trial court. Mr. Black's post-conviction counsel argued that his trial counsel was ineffective for a variety of reasons, but he did not argue that his trial counsel was ineffective for failing to request an instruction for involuntary manslaughter in the first degree. Mr. Black appealed the denial of his post-conviction motion to the Missouri Court of Appeals, which affirmed the motion court's ruling.

D. Habeas Petition

In Mr. Black's original writ for habeas corpus, he made five claims: (1) his trial counsel was ineffective for failing to submit a jury instruction for the lesser included offense of involuntary manslaughter in the first degree; (2) his trial counsel was ineffective for failing to present available evidence that S.G. was abused by her biological father; (3) his trial counsel was ineffective in failing to adequately cross-examine B.G.; (4) his trial counsel was ineffective for failing to object to Dr. Case's testimony; and (5) he was denied due process by the trial court's decision to submit a “hammer” instruction to the jury. Only Mr. Black's first claim remains pending before the Court.

Mr. Black supported his first claim by alleging that the jury was presented with an “all or nothing” choice, which was unreasonable given the strength of the prosecution's case, and if presented with an involuntary manslaughter instruction, there is a reasonable probability that the jury would have convicted Mr. Black of involuntary manslaughter, rather than murder in the second degree. Mr. Black highlights that the jury asked during deliberations if they could convict Mr. Black on a lesser charge.

E. Court's Prior Orders

On May 16, 2022, this Court denied claims 2-5 of Mr. Black's habeas petition because Mr. Black could not show that the previous state court denials of these claims were “contrary to, or involved an unreasonable application of, federal law or resulted in a decision that was based on an unreasonable determination of the facts.” Doc. 19, at 6. But the Court granted Mr. Black's request for an evidentiary hearing on claim 1. The Court determined that (1) the claim was procedurally defaulted; (2) Mr. Black had made sufficient allegation in his pro se petition that his procedural default should be excused under Martinez v. Ryan, 566 U.S. 1 (2012); (3) despite Arnold v. Dormire, 675 F.3d 1081 (8th Cir. 2012), Mr. Black could make a claim for ineffective assistance of counsel based on the failure to request a lesser included instruction; and (4) an evidentiary hearing was needed. Doc. 19, at 12.

After this Court's Order, the Supreme Court decided Shinn v. Ramirez. 142 S.Ct. 1718 (2022). The Court then ordered the Parties to brief whether the Court could still hold an evidentiary hearing after Shinn and, if not, whether the Court could grant habeas relief based on the current record. After reviewing the Parties' briefs, the Court held oral argument on the merits of Mr. Black's ineffective assistance claim.

II. LEGAL STANDARD

“The writ of habeas corpus stands as a safeguard against imprisonment of those held in violation of the law.” Harrington v. Richter, 562 U.S. 86, 91 (2011). “In general, if a convicted state criminal defendant can show a federal habeas court that his conviction rests upon a violation of the Federal Constitution, he may well obtain a writ of habeas corpus that requires a new trial, a new sentence, or release.” Trevino v. Thaler, 569 U.S. 413, 421 (2013). The Anti-Terrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254 (“AEDPA”), applies to all petitions for habeas relief filed by state prisoners after it's effective date, April 24, 1996. Lindh v. Murphy, 521 U.S. 320, 326-29 (1997). A habeas petitioner must “fairly present” his or her claims in state court before seeking habeas relief in federal court. See Murphy v. King, 652 F.3d 845, 848-49 (8th Cir. 2011); see also 28 U.S.C. § 2254(b)(1)(A) (“An application for a writ of habeas corpus . . . shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State”). When a petitioner fails to fully exhaust his claims in state court, and the time to do so has passed, the petitioner's claims are procedurally defaulted. See Coleman v. Thompson, 501 U.S. 722, 731-32 (1991).

It is undisputed that Mr. Black's claim is procedurally defaulted because it was not raised...