Wolfe v. Pash

DANNY RAY WOLFE, Petitioner, v. RONDA PASH, Respondent.

Case No. 15-0472-CV-W-FJG-P

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI WESTERN DIVISION

November 10, 2015

OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING THE ISSUANCE OF A CERTIFICATE OF APPEALABILITY

Petitioner, a convicted state prisoner currently confined at Crossroads Correctional Center in Cameron, Missouri, has filed pro se this federal petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2006 convictions and sentences for two counts of first-degree murder, two counts of armed criminal action, and one count of first-degree robbery, which were entered in the Circuit Court of Camden County, Missouri. Petitioner's convictions and sentences were affirmed on direct appeal. State v. Wolfe, 344 S.W.3d 822 (Mo. Ct. App. 2011); Doc. 11-15.¹ Petitioner's motion for post-conviction relief filed pursuant to Mo. Sup. Ct. R. 29.15 was denied following an evidentiary hearing (Doc. 11-17, pp. 51-78) and that denial was affirmed on appeal therefrom (Wolfe v. State, 446 S.W.3d 738 (Mo. Ct. App. 2014); Doc. 12-18).

Petitioner raises eight grounds for relief. Doc. 1, pp. 9-18. Respondent contends that Ground 1 is not cognizable and, alternatively, is without merit, that Ground 4 is procedurally defaulted and, alternatively, is without merit, and that Grounds 2, 3, and 5-8 are without merit. Doc. 9.

Statement of Facts

In affirming the denial of post-conviction relief, the Missouri Court of Appeals, Southern District, set forth the following facts:

In February 1997, Mr. and Mrs. Walters had a Cadillac for sale. That same month, [Petitioner] had unsuccessfully offered to sell Gregory Addington a .25 caliber pistol.

Late on the night of Wednesday, February 19, 1997, Jessica Cox went to a bar. [Petitioner] approached her there and introduced himself. [Petitioner] wanted Ms. Cox to sell drugs for him, and at around 1:00 a.m. on Thursday morning, Ms. Cox left the bar with [Petitioner] in his truck to get the drugs. They eventually wound up at [Petitioner's] hotel, where [Petitioner] donned a camouflage jacket and nylon "parachute" pants.

[Petitioner] and Ms. Cox left the hotel around 4:30 a.m. They stopped at a gas station, and [Petitioner] told Ms. Cox to buy a pair of jersey gloves. They proceeded to Greenview, where [Petitioner] pointed out the Walters residence and said that they would be going there. [Petitioner] drove past the residence and parked by the road. [Petitioner] told Ms. Cox that Mr. and Mrs. Walters had money, they were expecting him early in the morning to test-drive the Cadillac, and that he intended to rob them. [Petitioner] put on gloves; he also handed Ms. Cox a pair of gloves, telling her that she should wear them.

Around 6:00 a.m., the pair returned to the Walters residence, and [Petitioner] parked behind the Cadillac. Mrs. Walters answered the door, and Mr. Walters walked out to the Cadillac. [Petitioner] told Ms. Cox to join them, and Mr. Walters invited Ms. Cox to drive the car. Ms. Cox asked Mr. Walters to come with her on the test drive, and he agreed to do so. Mr. Walters was riding in the front passenger seat, and [Petitioner] was sitting behind him in the back seat.

As Ms. Cox drove back toward the Walters residence, she "heard a loud bang[.]" When she looked over, Mr. Walters took "his last breath" and put his head down. Ms. Cox also saw something that "looked like a barrel of a gun." [Petitioner] took Mr. Walters's wallet and remarked, "[T]his guy is loaded."

When they reached the Walters residence, [Petitioner] told Ms. Cox to get into his truck, and [Petitioner] went inside the house. Ms. Cox heard a "commotion." She also heard other noises, including a shot, emanating from the house. After about seven or eight minutes, [Petitioner] came out of the house, and he was carrying a safe. He put the safe in the bed of his truck and drove to a wooded area. [Petitioner] took the safe and some tools into the woods, and Ms. Cox saw him open the safe with the tools. [Petitioner] put some items from the safe into his pocket, leaving the safe and some papers on the ground.

[Petitioner] then drove to some condominiums, where he asked the custodian for a key to a storage shed. The custodian observed that [Petitioner] was wearing silky, nylon pants.

[Petitioner] went to another location at the condominiums for five to ten minutes. When he returned to the truck, [Petitioner] was wearing white painter's pants and a sweatshirt. [Petitioner] told Ms. Cox that he had thrown the gun into the lake. Around 8:00 a.m., [Petitioner] drove to a shopping center near Camdenton and bought some paint. Ms. Cox asked [Petitioner] to take her to the Osage Beach Hospital, where he dropped her off and gave her $540 in cash. [Petitioner] told Ms. Cox that he would kill her and her family if she told anyone what had happened. Ms. Cox called some friends and told them that she had been kidnapped.

Around 8:30 a.m. on February 20th, a propane gas deliveryman, Kenneth Stoller, drove past the Walters residence and noticed a man sitting in the front passenger seat of the Cadillac that was for sale. When Mr. Stoller came back from the opposite direction, at around 10:30 a.m., he still saw a man sitting in the front passenger seat. He thought it odd that the man had not moved.

A mail carrier, Charles Lunaberg, usually delivered mail to the Walters mail box between 1:30 and 3:30 p.m. He knew that they picked their mail up daily as their box on the highway was always empty the next day when he delivered their mail. That familiar pattern was broken on Thursday, February 20, when Mr. Lunaberg noticed that the mail from the day before was still in their box. The following day, the accumulated mail was still in the box.

On an occasion that occurred after [Petitioner] had offered to sell the gun to Mr. Addington, [Petitioner] went into the bar that Mr. Addington managed and exchanged quarters that 'were in some sort of bags' for approximately $25 in currency.

On Sunday, February 23, Charles Rickey went to the Walters residence twice to dump septic tank waste on their field. Mr. Rickey had an agreement with Mr. Walters to pay for each load that he dumped. Mr. Rickey dumped his second load around noon. As he was leaving, he saw Mr. Walters sitting in the passenger side of the Cadillac. Mr. Rickey approached the car and noticed dried blood on Mr. Walters's clothes. Mr. Rickey opened the door and touched Mr. Walters, who "felt like he was all like concrete." Mr. Rickey called 9-1-1. His father, who was with him at the time, went to the door of the house and called for Mrs. Walters, but he received no response.

Officers recovered a spent shell casing from Mr. Walters's collar, and a live .25 caliber round from the back seat of the Cadillac. Officers located Mrs. Walters's body inside the house. It was covered in blood and surrounded by more blood on the floor. A shotgun lay near her feet, and a bloody knife was laying on the floor in the kitchen. Tennis-shoe type footprints were present on the kitchen floor. The prints didnot match the shoes on Mrs. Walters's body. Autopsies later indicated that Mr. Walters died from a gunshot wound to his head that perforated his spinal cord. Mrs. Walters had a shotgun wound, but she died from a stab wound that penetrated her heart.

On February 27, Ms. Cox contacted an attorney. Her attorney subsequently secured an agreement from the prosecutor that granted Ms. Cox immunity from prosecution in exchange for her promise to provide truthful testimony against [Petitioner]. That same evening, Ms. Cox led officers to the safe. Along with the safe, the officers found papers bearing Mr. Walters's name, a bag of quarters, and some loose quarters.

The police recovered items from a dumpster at [Petitioner's] hotel, including a live .25 caliber round, a lease agreement bearing [Petitioner's] name, a camouflage coat, gloves, a partially-full box of .25 caliber ammunition with a black hair inside, and another box of .25 caliber ammunition. A search of a storage shed at the condominium where paint was stored produced black nylon pants and a pair of tennis shoes. Laboratory analysis subsequently showed that the shoeprints on the kitchen floor of the Walters home were consistent with the tennis shoes recovered from the shed. A search of [Petitioner's] truck yielded some brown jersey gloves.

The police interviewed [Petitioner], who initially denied knowing Ms. Cox. He subsequently admitted that she had accompanied him to his hotel room, but he denied taking Ms. Cox to the condominiums.

Wolfe, 446 S.w.3d at 741-43 (footnotes omitted, alterations added); Doc. 12-18, pp. 4-7.

Before the state court findings may be set aside, a federal court must conclude that the state court's findings of fact lack even fair support in the record. Marshall v. Lonberger, 459 U.S. 422, 432 (1983). Credibility determinations are left for the state court to decide. Graham v. Solem, 728 F.2d 1533, 1540 (8th Cir. en banc), cert. denied, 469 U.S. 842 (1984). It is Petitioner's burden to establish by clear and convincing evidence that the state court findings are erroneous. 28 U.S.C. § 2254(e)(1).² Because the state court's findings of fact have fair support in the record and because Petitioner has failed to establish by clear and convincing evidence that the state court findings are erroneous, the Court defersto and adopts those factual conclusions.

Ground 1

In Ground 1, Petitioner argues that Officer Gary Bowling omitted material facts from the search warrant application, thereby misleading the issuing judge as to the existence of probable cause. Doc. 1, p. 9. Respondent contends that Ground 1 is not cognizable in federal habeas pursuant to the doctrine established by Stone v. Powell, 428 U.S. 465, 494 (1976), which held that, "where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state...