Weinert v. Kempker

BRAD WEINERT, Petitioner, v. JULIE KEMPKER^[1] Respondent.

No. 4:20-cv-00850-JAR

United States District Court, E.D. Missouri, Eastern Division

May 6, 2022

MEMORANDUM AND ORDER

JOHN A. ROSS UNITED STATES DISTRICT JUDGE.

This matter is before the Court on Petitioner Brad Weinert's Petition for Writ of Habeas Corpus pursuant to 28 U.S.C § 2254. (Doc. No. 1). The motion is fully briefed and ready for disposition. For the following reasons Petitioner's Section 2254 petition will be denied and the action dismissed.

I. Introduction and Background

The evidence at trial revealed the following. On March 30, 2012 at around 5:30 P.M., Petitioner was speeding down Interstate 70, weaving in and out of traffic, when he crashed his minivan into a car driven by Adrianne Crews. (Doc. No. 13-3 at 676). Although Petitioner claimed his vehicle was hit by Ms. Crews' truck, Petitioner's vehicle had “heavy front end damage, ” and witnesses reported his vehicle hit Ms. Crews truck. Id. at 68-69. Ms. Crews' truck flipped several times as a result of the accident. Terri Bellagamba was driving down Interstate 70 at the time of the accident and witnessed Petitioner hit Ms. Crews' car. She pulled over and called 911. Id. at 684-85. Ms. Bellagamba spoke with a state trooper briefly; Petitioner then walked up to her car and asked her about her conversation with the officer. Id. at 686. Ms. Bellagamba did not respond, but Petitioner remained at her car window staring in at her for several minutes. Id. at 878-87.

State Trooper Justin Moll responded to the accident. He noticed Petitioner had red, watery eyes, slurred speech, and smelled of alcohol. Id. at 70. Petitioner admitted he drank six beers prior to driving. Id. Petitioner performed three field sobriety tests, all of which showed indications of intoxication. Id. at 118-19. He was then arrested for driving while intoxicated and taken to a hospital to have his blood drawn to test for blood alcohol content. Petitioner's blood was drawn at 11:09 P.M. and again at 12:19 A.M. The first test resulted in a 0.14 BAC and the second resulted in a 0.119 BAC. Id. at 618-19.

At the trial, Ms. Crews testified about the extent of her injuries. She described the pain of the injury as “the worst pain I ever had in my life.” Id. at 711. The prosecutor asked her what injuries she had as a result of the crash and Ms. Crews responded “I had a concussion. I broke my back teeth. I bruised internal organs. I -- my abdominal walls separated, I had muscle separation in my stomach. My back had all kinds of things messed up with my back, my neck, my head. My hips hurt. I had bruises from my face all the way down to my ankles.” Id. at 712. Additionally, Ms. Crews' bladder was damaged. She was incontinent and urinated blood for 6 weeks. She also testified about the extreme extent of her pain: “I'm in pain right now.I am in extreme pain most of the time.” Id.

Ms. Bellagamba testified at the trial about the trauma she experienced as a result of the accident. She said the accident impacted her “driving” and “if I'm not in control of the car, if I'm riding with somebody else, I can't handle it...I feel like I have to be in control. I'm a nervous wreck. I want to be on the floorboard telling them what to do from point A to point B.” Id. at 689.

During closing arguments, the prosecuting attorney showed the jury six beer bottles, and explained the bottles were demonstrative. The trial court allowed the prosecutor to use the beers provided the jury “understand that these are not any beers that were in evidence.” Id. at 749. Trial counsel objected to Ms. Crews' and Ms. Bellagamba's testimony about their injuries as well as the prosecuting attorney's use of the six beer bottles.

The jury found Petitioner guilty of driving while intoxicated pursuant to Rev. Stat. Mo. §557.010. The charge has two elements: first, the person must have operated a motor vehicle and second, the person must be intoxicated while operating the vehicle. The prosecutor also sought to enhance Petitioner's sentence by showing he is a chronic offender under Rev. Stat. Mo. § 577.023. To prove Petitioner is a chronic offender, the prosecutor presented non-certified printouts from the Driving While Intoxicated Tracking System (DWITS) maintained by the Missouri state highway patrol. (Doc. No. 13-3 at 160-64). The printouts indicated Petitioner has five prior DWI convictions and one conviction of excessive blood alcohol content. Trial counsel objected to the introduction of the DWITS records because the records were not authenticated. Id. The trial judge overruled the objection, finding the printouts were sufficient proof. Id. at 163. Based on the DWITS records, the judge found Petitioner is a chronic offender and enhanced his sentence from a Class B misdemeanor to a Class B felony. Petitioner was sentenced to eleven years. Since filing, Petitioner has been released on parole.^[2]

a. Direct appeal

Petitioner raised three points on direct appeal: (1) the trial court abused its discretion in permitting Ms. Crews to testify about the severity of the injuries she suffered as a result of the accident, (2) the trial court abused its discretion in permitting Ms. Bellagamba to testify about her emotional distress, and (3) the trial court erred in allowing the prosecutor to display the six beer bottles during closing argument. On October 25, 2016, the Missouri Court of Appeals, Eastern District, determined Petitioner could not demonstrate prejudice on his first and second claims because he failed to show “the challenged admission of [Ms. Crews' and Ms. Bellagamba's] injuries is dispositive.” (Doc. No. 13-7 at 6). The appellate court also found that Petitioner conceded the first element of § 577.010-that he operated a motor vehicle-and there was “overwhelming evidence adduced during the course of trial” showing the second element, that Petitioner was intoxicated while operating the motor vehicle, including the blood alcohol tests and Petitioner's admission that he drank six beers prior to driving. Id. at 5-6. The appellate court further found against Petitioner on the third claim, determining it “need not discern the propriety of the trial court's ruling that permitted the State to display six beer bottles, for demonstrative purposes, during closing arguments, because [Petitioner], again, cannot demonstrate prejudice.” Id. at 10.

b. Post-Conviction Court

Petitioner alleged in his motion for post-conviction relief that his appellate counsel was ineffective for failing to assert on direct appeal that the trial court erred in accepting unauthenticated evidence from the DWITS as evidence that Petitioner is a chronic offender pursuant to Mo. Rev. Stat. § 577.023. On August 15, 2017, after the Eastern District Court of Appeals denied Petitioner's direct appeal, the Missouri Court of Appeals, Western District, determined § 577.023 did not eliminate the general foundational requirements for admissibility of evidence, and as such an unauthenticated DWITS record printout is inadmissible. State v. Pylypczuk, 527 S.W.3d 96, 102 (Mo.Ct.App. 2017).

The post-conviction court held an evidentiary hearing at which Petitioner's appellate counsel, William Swift, and Petitioner testified. Mr. Swift testified that, based on his reading of the statute and review of the trial record, the claim did not have as high a chance of success as the claims he chose to raise. (Doc. No. 13-10 at 13-45). The post-conviction court found appellate counsel acted reasonably in not raising the DWITS argument. (Doc. No. 13-9 at 124). No appellate court had yet interpreted the language of §577.023 regarding authentication and the reading given by appellate counsel was customarily used at the trial level by both counsel and trial courts. Id. Furthermore, the post-conviction court found Petitioner had failed to show prejudice because he “has not alleged facts or submitted evidence to establish a reasonable probability that the Eastern District Court of Appeals would have reversed the trial court's admission of the DWITS record, ” as the Eastern District has not yet interpreted the language at issue. Id. at 125.

c. Post-Conviction Appeal

Petitioner appealed the post-conviction court's determination, arguing the court erred in finding appellate counsel's actions were reasonable, as a competent attorney would have raised the DWITS argument on appeal. The appellate court upheld the post-conviction court's decision. It found that Petitioner has failed to show the DWITS claim was “so obvious any reasonably competent attorney would have asserted it at the time of Movant's direct appeal.” (Doc. No. 1313 at 1). The post-conviction appellate court found Pylypczuk did not render appellate counsel's decision clearly erroneous because he “could not have been expected to predict the clarification under Pylypczuk when another reasonable interpretation existed.” Id. at 10. However, the appellate court agreed with Petitioner that “it is now clear the DWITS claim would likely have resulted in a reduced sentence.” Id. at 11.

II. Analysis

A district court “shall entertain an application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). Federal courts may not grant habeas relief on a claim that has been decided on the merits in State court unless that adjudication:

(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

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