No.

22-

In the
Supreme Court of the United States

IN RE CHRISTOPHER DUNN.

On Petition for Writ of Habeas Corpus to the

Supreme Court of the United States

PETITION FOR WRIT OF HABEAS CORPUS

PURSUANT TO 28 U.S.C. § 2241

Justin C. Bonus
Counsel of Record
Justin C. Bonus Attorney at Law
118-35 Queens Blvd., Suite 400
Forest Hills, NY 11375
(347) 920-0160
justin.bonus@gmail.com

Counsel for Petitioner

317665

A
(800) 274-3321 • (800) 359-6859
 i

QUESTIONS PRESENTED

Mr. Christopher Dunn’s petition presents exceptional

circumstances that have sharply divided courts below and
left both state and federal courts with an unanswered
question by this Court: does innocence matter? Since
Mr. Dunn’s murder conviction in 1991, a Missouri Circuit
Court justice found that no jury would convict Dunn had
the jury heard the evidence that Mr. Dunn presented in his
last post-conviction proceedings in 2018. Despite hearing
the evidence Dunn presented and finding that no jury
would convict Dunn had any jury heard this evidence, the
Missouri state court denied Mr. Dunn’s habeas petition
because freestanding claims of innocence apply only to
prisoners who are sentenced to death pursuant to Missouri
precedent under Lincoln v. Cassady, 517 S.W.3d 11 (Mo.
Ct. App. W.D. 2016).

The following questions are presented.

1. Is it cruel and unusual punishment and a

substantive due process violation for an innocent
man to remain in prison?

2. Is the claim of freestanding actual innocence

a cognizable claim for petitioners sentenced to
either incarceration or death under the United
States Constitution when a state court has
concluded, after taking testimony and hearing
evidence at a post-conviction hearing, that no
jury would convict the petitioner?

3. Is “clear and convincing evidence” the standard

to meet a freestanding actual innocence claim?
 ii

PARTIES TO THE PROCEEDINGS BELOW

This petition stems from a habeas corpus proceeding

in which petitioner, Christopher Dunn, was the movant
before the United States Court of Appeals for the Eighth
Circuit. Petitioner was sentenced to life plus ninety years
and in the custody of Michele Buckner, Warden of South
Central Correctional Facility.
 iii

RELATED CASES STATEMENT

State v. Dunn, Cause No. 901-1555, St. Louis County

Circuit Court, judgment date September 6, 1991.

State v. Dunn, Court of Appeals of Missouri, Eastern

District, Division Three, judgment date October 25, 1994.

State v. Dunn, Court of Appeals of Missouri, Eastern

District, Division Five, judgment date September 12, 1995.

Dunn v. Bowersox, Dock. No. 4:97-cv-00331-MLM, United

States District Court for the Western District of Missouri,
judgment date March 27, 2000.

Dunn v. Bowersox, Dock. No. 00-2008, United States

Court of Appeals for the 8th Circuit, judgment date August
24, 2000.

State ex rel. Dunn v. Buckner,  Docket number 17TE-

CC00059 and SC99157, Texas County Circuit Court,
judgment date September 23, 2020.

State ex rel. Dunn v. Buckner, Dock. No. SD36893, Court

of Appeals of Missouri Southern District, judgment date
November 13, 2020.

State ex rel. Dunn v. Buckner, Dock. No. SC99157,

Missouri Supreme Court, judgment dated June 9, 2021.

Dunn v. Buckner, Docket number 22-1892, United States

Court of Appeals for the 8th Circuit, judgment date July
27, 2022.
 iv

TABLE OF CONTENTS
Page
QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . . i

PARTIES TO THE PROCEEDINGS BELOW . . . . . . ii

RELATED CASES STATEMENT . . . . . . . . . . . . . . . iii

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . iv

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . vii

I. PETITION FOR WRIT OF HABEAS

CORPUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

II. OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . 1

III. JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . 3

IV. STATUTORY AND CONSTITUTIONAL

PROVISIONS INVOLVED . . . . . . . . . . . . . . . . . . 3

V. STATEMENT OF THE CASE . . . . . . . . . . . . . . . 4

VI. REASONS FOR GRANTING THE WRIT . . . 15

Preliminary Statement . . . . . . . . . . . . . . . . . . . . 15

POINT I

STATEMENT OF REASONS FOR NOT

FILING IN THE DISTRICT COURT . . . . . . . . . . 19
 v

Table of Contents
Page
POINT II

THE EXCEPTIONAL CIRCUMSTANCES OF

THIS CASE WARRANT THE EXERCISE OF
THIS COURT’S JURISDICTION BECAUSE
A STATE COURT JUDGE FOUND THAT NO
JURY WOULD CONVICT DUNN AFTER
HEA RING A ND CONSIDERING A LL
OF THE EVIDENCE IN MR. DUNN’S
POST- CON V ICTION PROCEEDINGS.
MR. DUNN REMAINS IN PRISON ONLY
BECAUSE MISSOURI STATE COURTS
DO NOT RECOGNIZE FREE-STANDING
INNOCENCE CLAIMS FOR DEFENDANTS
NOT SENTENCED TO DEATH . . . . . . . . . . . . . . 20

POINT III

THE COURT OF APPEALS ERRED IN

BA R R I NG CH RI S T OPH ER DU N N ’ S
SECON D PET I T ION BECAUSE M R .
DU NN M ET THE STA NDA RD OF A
FREESTANDING CLAIM OF ACTUAL
INNOCENCE WHEN THE HEA RING
COURT DETERMINED THAT NO JURY
WOULD CONVICT DUNN HAD IT HEARD
THE EVIDENCE DUNN PRESENTED IN
HIS POST-CONVICTION PROCEDINGS . . . . . . 27
 vi

Table of Contents
Page
POINT IV

CHRIST OPHER DU NN ’ S RIGH T T O

BE FR EE FROM CRU EL A N D
UNUSUA L PUNISHMENT IS BEING
V IOL ATED EV ERY MOMENT TH AT
HE REMAINS IN PRISON. IT WOULD
SHOCK THE CONSCIENCE OF EVERY
REAONABLE CITIZEN TO LEARN THAT
CHRISTOPHER DUNN, A DEFENDANT
WHO WA S FOUND INNOCENT BY A
COURT, REM A INS IN PRISON. See
8th & 14th Amend. U.S. Const. . . . . . . . . . . . . . . 30

VII. CONCLUSION AND PRAYER FOR RELIEF . . 33

 vii

TABLE OF CITED AUTHORITIES

Page
Cases

Abney v. United States,

431 U.S. 651, 656, 97 S. Ct 2034, 2038 (1977). . . . . . 21

Atkins v. Virginia,
536 U.S. 304 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Byrnes v. Walker,
371 U.S. 937 (1962); . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Chappel v. Cochran,
369 U.S. 869 (1962) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Commissioner v. Duberstein,
363 U.S. 278 (1960) . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Cornell v. Nix,
119 F.3d 1329 (8th Cir. 1997) . . . . . . . . . . . . . . . . . . . 26

County of Sacramento v. Lewis,

523 U.S. 833, 118 S. Ct. 1708, 140 L. Ed. 2d 1043
(1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Dansby v. Hobbs,
766 F.3d 809 (8th Cir. 2014) . . . . . . . . . . . . . . . . . . . . 25

In re Davis,
130 S. Ct. 1 (2009) . . . . . . . . . . . . . . . . . . . . . . . . passim
 viii

Cited Authorities
Page
In re Davis,
No. CV409-130, 2010 WL 3385081
(S.D.Ga. Aug. 24, 2010) . . . . . . . . . . . . . . . . . . . . . . . . 28

Douglas v. California,
372 U.S. 353, 83 S.Ct 814 (1963) . . . . . . . . . . . . . . . . 21

Dunn v. Bowersox,
Dock. No. 00-2008 (8th Cir. August 24, 2000) . . . . . . 1

Dunn v. Bowersox,
Dock. No. 4:97-cv-00331-MLM (March 27, 2000) . . . 1

Dunn v. Buckner,
22-1892 (8th Cir. July 27, 2022) . . . . . . . . . . . . . . . . . . 2

Ex parte Elizondo,
947 S.W.2d 202 (Tex. Crim. App. 1996) . . . . . . . . . . 29

Feather v. United States,

18 F.4th 982 (8th Cir. 2021) . . . . . . . . . . . . . . . . . 25, 26

Felker v. Turpin,
518 U.S. 651, 663 (1996) . . . . . . . . . . . . . . . . . . . passim

Griffin v. Illinois,
351 U.S. 12, 76 S.Ct 585, (1956) . . . . . . . . . . . . . . . . 21

In re Hardy,
41 Cal. 4th 977 (Cal. Sup. Ct. 2007) . . . . . . . . . . . . . . 29
 ix

Cited Authorities
Page
Harris v. Kuhlman,
601 F.Supp. 987 (E.D.N.Y. 1985 . . . . . . . . . . . . . . . . . 21

Herrera v. Collins,
506 U.S. 390 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

House v. Bell,
761 F.3d 443 (5th Cir. 2014) . . . . . . . . . . . . . . 16, 17, 23

Kaufman v. United States,

394 U.S. 217 (1969) . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

In re Lincoln v. Cassady,
517 S.W.3d 11 (Mo. Ct. App. W.D. 2016) . 15, 18, 19, 20

Miller v. Comm’r of Correction,

242 Conn. 745, 700 A.2d 1108 (Conn. 1997) . . . . . . . 29

Montoya v. Ulibarri,
163 P.3d 476, 484 (N.M. 2007) . . . . . . . . . . . . . . . . . . 29

Murray v. Carrier,
477 U.S. 478 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

People v. Cole,
1 Misc 3d 531 (N.Y. Kings Cty. Sup. Ct. 2003) . . . . 18

People v. Hamilton,
115 A.D.3d 12 (N.Y.App.Div. 2d Dep’t 2014) . . . 28-29
 x

Cited Authorities
Page
People v. Washington,
171 Ill. 2d 475 (Ill. 1996) . . . . . . . . . . . . . . . . . . . . . . . 29

Rinaldi v. Yeager,
384 U.S. 305, 86 S.Ct 1497, (1966) . . . . . . . . . . . . . . . 21

Roper v. Simmons,
543 U.S. 551 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Schlup v. Delo,
513 U.S. 298 (1995) . . . . . . . . . . . . . . . . . . . . . 15, 17, 28

Sawyer v. Whitley,
505 U.S. 333 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

State ex rel. Amrine v. Roper,

102 S.W.3d 541 (Mo. 2003) . . . . . . . . . . . . . . . . . . . . . 29

State ex rel. Dunn v. Buckner, 

17TE-CC00059 and SC99157 (Sept. 23, 2020) . . .2, 17

State ex rel. Dunn v. Buckner,

Dock. No. SD36893 (Mo.App. S.D.
November 13, 2020) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

State ex rel. Dunn v. Buckner,

Dock. No. SC99157 (Mo. June 9, 2021) . . . . . . . . . . . . 2

State ex rel. Griffin v. Denney,

347 S.W.3d 73 (Mo. banc 2011) . . . . . . . . . . . . . . . . . . 17
 xi

Cited Authorities
Page
State v. Dunn,
889 S.W.2d 65 (Mo.App. E.D. 1994) . . . . . . . . . . . . 1, 5

State v. Dunn,
906 S.W.2d 388 (Mo.App. E.D. 1995) . . . . . . . . . . . . . 1

Strickland v. Washington,
466 U.S. 668 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Teague v. Lane,
489 U.S. 288, 109 S. Ct. 1060, 103 L. Ed. 2d 334
(1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Triestman v. United States,

124 F.3d 361 (CA2 1997) . . . . . . . . . . . . . . . . . . . . . . . 24

Wiggins v. Smith,
539 U.S. 510 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Wolff v. McDonnell,
418 U.S. 539 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Federal Statutes

28 U.S.C. § 1651 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

28 U.S.C. § 2241 . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

28 U.S.C. § 2242 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 19
 xii

Cited Authorities
Page
28 U.S.C. § 2244 . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

28 U.S.C. § 2254 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Rules

Missouri Criminal Procedural Rule 29.15 . . . . . . passim

Supreme Court Rule 20.4 . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Other

Friendly, Herry J. “Is Innocence Irrelevant?

Collateral Attack on Criminal
J u d g m e n t s .” Un i v e r s i t y o f C h i c a g o
Law Review: Vol. 38: Iss. 1, Article 9 . . . . . . . . . . . . 31

Jonathan M. Kirshbaum,  Actual Innocence

after Friedman v. Rehal: The Second Circuit
Pursues a New Mechanism for Seeking
Justice in Actual Innocence Cases,  31 Pace
L Rev 627, 660-661 [Spring 2011] . . . . . . . . . . . . . . . 18
 1

I. PETITION FOR WRIT OF HABEAS CORPUS

Petitioner Christopher Dunn petitions this Court

for a writ of habeas corpus based upon his freestanding
claim of actual innocence and his continued imprisonment
in violation of the 8th and 14th Amendments of the United
States Constitution in accordance with its authority under
28 U.S.C. § 2241(b).

II. OPINIONS BELOW

Mr. Dunn filed a pro se motion for post-conviction

relief under Missouri Criminal Procedural Rule 29.15 and
a direct appeal. His motion for post-conviction relief was
denied and his conviction was affirmed in all respects,
except that the appellate division remanded the matter
back down to the trial court for a hearing on Mr. Dunn’s
Batson claim. See State v. Dunn, 889 S.W.2d 65 (Mo.
App. E.D. 1994). Mr. Dunn’s Batson claim was ultimately
denied as well. See State v. Dunn, 906 S.W.2d 388 (Mo.
App. E.D. 1995).

Mr. Dunn therein filed a writ of habeas corpus in

the United States District Court, Eastern District of
Missouri, pursuant to 28 U.S.C. 2254, which was denied
on March 27, 2000. See Appendix C, pg 29a - Dunn v.
Bowersox, Dock. No. 4:97-cv-00331-MLM (March 27,
2000). Dunn sought a certificate of appealability from the
United States Court of Appeals for the Eighth Circuit,
which was denied. Dunn v. Bowersox, Dock. No. 00-2008
(8th Cir. August 24, 2000). This Court denied Mr. Dunn’s
petition for writ of certiorari on February 5, 2001.
 2

Mr. Dunn next filed a writ of habeas corpus on

February 15, 2017, pursuant to Rule 91 because of newly
discovered evidence. He was granted an evidentiary
hearing by the 25th Circuit Court of Texas County, which
took place on May 30, 2018. The 25th Circuit Court also
granted the Petitioner leave to amend the habeas petition
to include evidence of a Brady claim after a recanting
witness admitted to a deal with the prosecutor that was
not disclosed to the jury.

On September 23, 2020, after finding that no jury

would convict Christopher Dunn with the evidence
presented at Dunn’s post-conviction hearing, the Circuit
Court of Texas County, Missouri, denied Mr. Dunn’s state
petition for writ of habeas corpus. State ex rel. Dunn v.
Buckner, 17TE-CC00059 and SC99157, (Sept. 23, 2020)
(Judge William E. Hickle). See Appendix B, pg. 3a.

Dunn appealed his denial to the Missouri Appellate

Division Southern District, which declined to hear the
case. State ex rel. Dunn v. Buckner, Dock. No. SD36893
(Mo.App. S.D. November 13, 2020). Dunn appealed the
Appellate Division’s denial to the Missouri Supreme
Court. His application to be heard before the Missouri
Supreme Court was likewise denied. State ex rel. Dunn
v. Buckner, Dock. No. SC99157 (Mo. June 9, 2021).

On April 29, 2022, Dunn sought leave to file a

successive petition for writ of habeas corpus before the
United States Court of Appeals for the Eighth Circuit
pursuant to 28 U.S.C. § 2244. His petition for leave was
denied on July 27, 2022. Dunn v. Buckner, 22-1892 (8th Cir.
July 27, 2022). See Appendix A, pg 1a.
 3

III. JURISDICTION

The order of the court of appeals denying authorization

to file a successive petition was entered on July 27, 2022.
This Court has jurisdiction over an original writ of habeas
corpus petitions pursuant to United States Supreme Court
Rule 20.4(a), 28 U.S.C. §§ 2241, 2254(a), 1651(a), and Article
III of the United States Constitution. See also Felker v.
Turpin, 518 U.S. 651, 663 (1996); Byrnes v. Walker, 371
U.S. 937 (1962); Chappel v. Cochran, 369 U.S. 869 (1962).
Mr. Dunn’s claims are ripe before this Court, as he has
exhausted all his state court and federal court remedies.
See 28 U.S.C. §§ 2241, 2242 & 2254(b).

IV. S T A T U T O R Y A N D C O N S T I T U T I O N A L
PROVISIONS INVOLVED

This case involves an original habeas application

pursuant to 28 U.S.C. § 2244 and 28 U.S.C. § 2241, which is
an extraordinary form of review for both state and federal
convictions that have exhausted post-conviction remedies.
See generally In re Davis, 130 S. Ct. 1 (2009); Felker v.
Turpin, 518 U.S. 651 (1996). The constitutional provision
directly at issue here is the 8th Amendment right to remain
free from cruel and unusual punishment based upon the
incarceration of an innocent man and the 14th Amendment
provision that “[n]or shall any State deprive any person
of life, liberty, or property, without due process of law….”
 4

V. STATEMENT OF THE CASE1

Christopher Dunn was convicted by a jury on July 18,

1991, for the May 18, 1990, murder of Ricco Rogers. Dunn
was also convicted of two counts of assault in the first
degree and three counts of armed criminal action arising
from the same occurrence. Mr. Dunn was subsequently
sentenced to life without parole and consecutive sentences
of ninety years by St. Louis City Circuit Judge Michael
Calvin.

The State’s case rested upon the eyewitness testimony

of fourteen-year-old DeMorris Stepp and twelve-year-old
Michael Davis. Both of these young men testified at trial
that on May 18, 1990, these two juveniles and Mr. Rogers
were sitting on a porch at a house at 5607 Labadie in the
City of St. Louis. Just before midnight, Mr. Stepp testified
that he saw Christopher Dunn standing in the gangway
of the house next door. A few minutes later, shots rang
out and all three boys tried to run away. Both Mr. Stepp
and Mr. Davis testified at trial that Mr. Dunn was the
person who fired the fatal shots that caused the death of
Mr. Rogers.

At the time he testified, Mr. Stepp had pending charges

for armed robbery, armed criminal action, unlawful use of
a weapon, and tampering in the first degree. In exchange
for his testimony against Dunn, the prosecution dropped
the armed criminal action charges against Mr. Stepp, who
then pleaded guilty to the remaining charges. The state
recommended a fifteen-year sentence for the charges;

1.  The factual recitation of this case is gathered directly

from Appendix B, pg 5a-16a.
 5

however, the sentencing judge granted Mr. Stepp three

years of probation.

After Mr. Dunn was convicted and sentenced, he filed

a timely notice of appeal and a timely Rule 29.15 motion
pursuant to Missouri’s then-existing consolidated post-
conviction review system in criminal cases. After holding
an evidentiary hearing, the trial court denied Petitioner’s
Rule 29.15 motion. On consolidated appeal, the Missouri
Court of Appeals, Eastern District affirmed Mr. Dunn’s
convictions and the denial of his post-conviction motion in
State v. Dunn, 889 S.W. 2d 65 (Mo. App. E.D. 1994). Mr.
Dunn, thereafter, unsuccessfully sought federal habeas
corpus relief pursuant to 28 U.S.C. § 2254 in the United
States District Court for the Eastern District of Missouri.

In 2005, DeMorris Stepp signed a sworn affidavit

claiming that he committed perjury when he identified
Christopher Dunn as the man he saw shoot Ricco Rogers.
Mr. Stepp indicated he was pressured by police and
prosecutors to falsely identify Mr. Dunn as the shooter
because they wanted him off the streets. Mr. Stepp also
asserted that the prosecution utilized Mr. Stepp’s pending
felony charges as leverage to convince him to testify that
Christopher Dunn was the shooter and promised him he
would avoid jail time if he did so. Mr. Stepp’s affidavit
states that because it was so dark that night, he could not
identify the person who fired the fatal shot.

At the recent evidentiary hearing, Mr. Stepp testified

that he committed perjury when he identified Christopher
Dunn as the shooter. In addition, he testified that he lied
under oath regarding the plea bargain he reached with the
prosecution about his pending charges. Mr. Stepp testified
 6

that he had an understanding with the prosecution that,

if he testified against Dunn, he would be guaranteed
probation and there was no danger in his mind that he
would receive a fifteen-year sentence.

At the Court’s request, the record was recently

reopened to allow the presentation of a transcript from
Mr. Stepp’s 1991 guilty plea and sentencing, which was
marked and received as Petitioner’s Exhibit 19. Though the
transcript corroborated that Mr. Stepp received probation,
it did not evidence an agreement or understanding with
Mr. Stepp or anyone else that Mr. Stepp would receive
probation.

On July 17, 1991, in Mr. Dunn’s trial, Mr. Stepp

testified against Dunn. Mr. Stepp acknowledged to the
jury that he had unrelated charges pending against
him. He testified that he had reached a plea agreement
where the state dropped armed criminal action charges
to give him a chance at probation, and that the state was
recommending that he receive fifteen years in prison (Tr.
147, 155-156). Later that same day, on July 17, 1991, Mr.
Stepp pleaded guilty before Judge Michael Calvin, who
was also the judge presiding over Mr. Dunn’s trial. In cause
number 911-640, Mr. Stepp was charged with robbery in
the first degree, armed criminal action, tampering in
the first degree, and unlawful use of a weapon. At the
commencement of the plea hearing, the prosecution
announced that there was a plea agreement whereby the
State would recommend concurrent sentences of fifteen
years on the robbery charge, one year on the tampering
charge, and one year on the weapons charge, all to run
concurrently. The armed criminal action charge would be
dismissed pursuant to this plea bargain. During the plea
 7

colloquy, the trial court noted that this plea bargain was
offered in consideration for Mr. Stepp’s testimony in the
case that he was presently trying. After the court accepted
the plea, a presentence investigation was ordered, and
sentencing was set for August 30, 1991.

At the sentencing hearing, Mr. Stepp’s counsel

requested on behalf of Mr. Stepp probation rather than
fifteen years’ imprisonment. Judge Calvin then conducted
a lengthy hearing in which he inquired of other family
members of Mr. Stepp who were present in the courtroom,
and ultimately elected to suspend imposition of sentence
on all three charges, granting Mr. Stepp only three years
of probation. The prosecutor remained silent during the
sentencing hearing.

The Circuit Court, during Dunn’s state habeas

hearing, found that no agreement for probation existed at
the time of Mr. Stepp’s testimony at Dunn’s trial for Mr.
Stepp to receive probation. The Circuit Court found that
it appeared that Judge Calvin at Mr. Stepp’s sentencing
hearing made an independent determination as to
whether young DeMorris Stepp should have been granted
probation rather than being sent to prison for fifteen
years. The Court believed that Judge Calvin ultimately
decided on probation, not because the parties had agreed
to it, but because Judge Calvin deemed it appropriate.

After he received probation, Mr. Stepp repeatedly

violated his probation and ultimately served his fifteen-
year sentence. After he was released, Mr. Stepp was
subsequently convicted of first-degree murder involving
the killing of his girlfriend and is currently serving
a sentence of life without parole at the Jefferson City
Correctional Center.
 8

In 2017, in an interview with an investigator from the

Missouri Attorney General’s office, Mr. Stepp provided a
third version of the events he purportedly observed the
night of the shooting. In this 2017 statement, Mr. Stepp
stated that another unknown individual shot and killed
Ricco Rogers and Mr. Dunn was standing by him when
the shooting occurred. At the evidentiary hearing in the
instant case, in addition to claiming that his trial testimony
was fabricated and false, Mr. Stepp testified that this story
he told the prior year to the attorney general’s investigator
was also false. In his 2018 testimony, Mr. Stepp asserted
that he hoped by giving this false statement to obtain a
reduction of his current sentence of life without parole.

At 2:50 a.m. on May 19, 1990, less than three hours

after the shooting, Mr. Stepp gave a recorded interview
with law enforcement officers, the transcript of which
was marked as Exhibit 14 of the post-conviction hearing.
Mr. Stepp said that Ricco Rogers, Michael Davis, and
DeMorris Stepp were on the porch at 5607 Labadie,
when Mr. Stepp saw Christopher Dunn hiding around the
corner next door. He then stated, “You know, I thought
my mind, you know, was playing games and I looked
dead in his face, and I guess he fired, he thought I seen
him, so he shot at me first...It missed me by just an inch.”
Several shots were fired, and the boys started running,
except that Ricco Rogers fell and died. When Mr. Stepp
was asked whether he saw Christopher Dunn prior to the
shots being fired, Mr. Stepp answered: “He was shooting
the gun.” (Exh. 14, pp. 2-6).

The hearing judge held that it was next to impossible

to determine which version of events related by Mr. Stepp
was the most credible. The hearing judge continued,
 9

“[h]owever, regardless of which of Mr. Stepp’s multiple

statements are true, it is beyond dispute that Mr. Dunn
was convicted based upon the eyewitness testimony of a
person who at this point has told multiple contradictory
versions of what he claims to have observed on the night of
the shooting.” See Appendix B, pg 10a. The hearing judge
determined that DeMorris Stepp was a liar.

The other eyewitness, Michael Davis, moved to

California shortly after he testified at Mr. Dunn’s trial.
Mr. Davis was on the Labadie porch with Ricco Rogers
and DeMorris Stepp at the time of the shooting. He was
interviewed by law enforcement at 3:04 a.m. on May 19,
1990, within approximately three hours of the shooting.
The statement was recorded, and the transcript was
marked as Exhibit 20. He stated in the interview that
moments after the shooting he fell to the ground and
played dead and looked up and was able to see the shooter.
He claimed to have recognized the shooter as “Trap”, the
nickname for Christopher Dunn, by the unique sunglasses
that Mr. Dunn regularly wore. (Exh. 20, pp. 2-9).

At trial, Mr. Davis testified that he did not see the

shooter until after the first shot was fired. Ricco Rogers
fell, and Mr. Davis fell beside him to avoid getting shot.
Mr. Davis claimed that right before he fell, he looked and
saw the shooter, who he identified as Christopher Dunn.
(Tr. 174-182).

In 2015, Mr. Davis was located at the Solano County

Jail in Fairfield, California where he was incarcerated
on pending criminal charges. (Exh’s. 2, 17, 18). After
being interviewed, Mr. Davis also recanted under oath in
a sworn affidavit. (Id.). This affidavit indicates that Mr.
 10

Davis committed perjury when he identified Mr. Dunn

as the killer at the 1991 trial. (Id.). Mr. Davis stated that
he could not see the shooter from his location. (Id.). Mr.
Davis indicated that Mr. Stepp convinced him to implicate
Mr. Dunn as the shooter because they believed he was a
member of the Crips gang in their neighborhood. (Id.).
Because Mr. Stepp and Mr. Davis were members of
the rival Bloods gang, they wanted Mr. Dunn out of the
neighborhood and believed implicating him in the murder
was an easy way to get that done. (Id.). This account is
corroborated by the testimony at the evidentiary hearing
from Mr. Stepp, who stated that he convinced Mr. Davis
to tell the police that Mr. Dunn was the shooter.

A couple of weeks after the shooting, Mr. Davis moved

to California with his mother. (Id.). He was brought back
to Missouri by the prosecutors in 1991 to testify at Dunn’s
trial. When interviewed by the police prior to testifying,
he stated that he hesitated as to whether he could identify
who shot Ricco Rogers. (Id.) At that time, he asserted that
he was pressured by the police to identify Christopher
Dunn as the killer. The police showed Mr. Davis photos
of Ricco Rogers’ corpse. The police also arranged to have
Ricco Rogers’ mother call him and urge him to testify.
(Id.) Mr. Davis stated that as a result of this pressure, Mr.
Davis appeared in court and committed perjury at trial
by identifying Mr. Dunn as the shooter. (Id.).

On November 17, 2015, Mr. Davis gave a tape-recorded

statement to Christopher Dunn’s investigator, Craig
Speck, at the Solano County Jail. (See Exh. 17). A copy of
this tape-recorded statement was transcribed by a court
reporter and was attached to Mr. Dunn’s reply in support
of his original petition as Exhibit 7. Mr. Davis provided
 11

another tape-recorded statement to Investigator Speck

on June 9, 2017, and affirmed his 2015 statement.

At the time of the evidentiary hearing, Mr. Davis was

in California custody and had been released from jail to
an inpatient drug treatment program. Counsel for Dunn
intended to take Mr. Davis’ deposition on or before August
1, 2018, and submit it to the hearing court. However, Mr.
Davis absconded from the halfway house and a warrant
was issued for his arrest. Because he was not arrested on
this warrant, Mr. Dunn requested that the hearing court
consider the testimony of Mr. Davis’ through his sworn
affidavit and through the transcribed taped statement that
were previously submitted to the hearing court.

The hearing court held that the recantations of

DeMorris Stepp and Michael Davis were bolstered by
the testimony of an independent eyewitness, Eugene
Wilson, who was present at the house and witnessed the
shooting death of Ricco Rogers. Mr. Wilson is referred
to as “Geno” in the police reports and during the trial
testimony of Mr. Stepp and Mr. Davis. Mr. Wilson signed
a sworn affidavit and testified at the evidentiary hearing
that he was present with Ricco Rogers, DeMorris Stepp,
and Michael Davis on Marvin Tolliver’s porch at 5607
Labadie on the night of May 19, 1990. Several shots rang
out that came from the front of the house to the west. Mr.
Wilson stated that because it was dark outside, none of
the young men on the porch could see who was shooting at
them. Everybody started to run except for Ricco Rogers
and, after the gunshots stopped, Mr. Wilson realized that
Ricco had been shot.
 12

Shortly after the shots were fired, one of the men

on the porch mentioned Christopher Dunn’s name and
indicated he might have been the shooter. Mr. Wilson
stated that many of the younger kids in that neighborhood
did not like Christopher Dunn. Mr. Wilson also testified
that because he and Marvin Tolliver were friends with
Mr. Dunn, he did not believe that Dunn would have shot at
them because of that friendship. He also testified that he
was certain that because of where Mr. Stepp and Mr. Davis
were positioned when Ricco Rogers was shot, neither of
them could have possibly seen the shooter or positively
identified Mr. Dunn. When he was told about some of
the prior statements that Mr. Stepp and Mr. Wilson had
given regarding the description of the shooter, Mr. Wilson
stated that these statements were false because it was not
possible that either of them could have seen the shooter.

The hearing court found that Mr. Wilson’s testimony

was credible. The court reasoned that Wilson had no
obvious motive to lie. Mr. Wilson credibly testified that
he did not speak to the police that night because he could
not identify who did it and did not believe at that time
that he had any relevant information to aid the police in
catching the actual shooter. Mr. Wilson’s credibility was
also enhanced by the fact that he had lived with Ricco
Rogers’ family since he was fourteen years old. As a result,
he was very close to Mr. Rogers’ mother and would have
no apparent motive to hinder the effort to hold accountable
the murderer of Ricco Rogers.

Mr. Wilson testified at the evidentiary hearing that

Mr. Rogers’ mother’s boyfriend had a motive to commit
these crimes because Mr. Rogers, Mr. Stepp, and Mr.
Davis had beaten him up three days earlier because he
 13

was physically abusive toward Ricco Rogers’ mother. Mr.

Wilson also testified that Ricco Rogers’ younger brother
was shot approximately three months later. Mr. Rogers’
brother was also involved in the beating of his mother’s
boyfriend.

The hearing court found that Christopher Dunn’s

claim of innocence was also corroborated by other
independent evidence. Mr. Dunn submitted a sworn
affidavit from Catherine Jackson indicating that she was
friends with Mr. Dunn at the time of the shooting in 1990
and that they often spoke on the phone.

Ms. Jackson indicated that at approximately 11:00

p.m. on the night of the shooting, she was engaged in a
lengthy phone conversation with Mr. Dunn that lasted
between thirty and sixty minutes that could have been
ongoing at the time that Mr. Rogers was shot. During that
conversation, she remembered that Mr. Dunn was happy
and acting normal and did not seem upset or indicate
that he had been involved in any altercation or dispute
with anyone. When she was contacted about being a trial
witness for Mr. Dunn, Ms. Jackson’s mother did not want
her to get involved and refused to answer the door when
the public defender’s office came. However, she did not
testify at the evidentiary hearing in this cause.

Another friend of Dunn, Nicole Bailey, provided

an affidavit and testified at Mr. Dunn’s post-conviction
hearing. Ms. Bailey testified that she spoke on the phone
with Dunn on the night that Mr. Rogers was shot. Ms.
Bailey remembers this phone conversation because it
occurred while she was in the hospital, after having given
birth to her first child the night before. Ms. Bailey also
 14

was certain that this phone conversation occurred on the

night that Mr. Rogers was killed because she attempted
to call Mr. Dunn again that same night and was informed
by Dunn’s sister that the police had just come to Dunn’s
house looking for him as a suspect in the killing of Mr.
Rogers that had occurred earlier that evening. (Id.).

Curtis Stewart testified at the post-conviction

evidentiary hearing. Mr. Stewart testified that he was
incarcerated in a ten-man pod at the St. Louis City
workhouse with DeMorris Stepp in 1991. Mr. Stewart
overheard Mr. Stepp making a telephone call, during
which Mr. Stepp indicated that he did not know who shot
Ricco Rogers. When Mr. Stewart and the other inmates
in that pod learned that Mr. Stepp was going to falsely
accuse Mr. Dunn of being the shooter, this caused friction
and fights and, as a result, Mr. Stepp was removed to
another area of the workhouse.

Finally, the hearing court found that Christopher

Dunn’s claim of innocence was corroborated by several
alibi witnesses whose testimony was presented at Mr.
Dunn’s Missouri Criminal Procedure Rule 29.15 hearing.
Mr. Dunn’s claim of innocence was also bolstered by
evidence adduced during the Rule 29.15 hearing that the
victim’s brother, Dwayne Rogers, had made statements
that Petitioner was not the man who had killed his brother
and that he knew the identity of the actual shooter.

The hearing court found that no jury would convict Mr.

Dunn with the evidence that Dunn had presented in his
post-conviction proceedings. Yet, the hearing court denied
Dunn’s freestanding actual innocence claim because
freestanding actual innocence claims are not available to
defendants who are not sentenced to death based upon
 15

Missouri precedent set in In re Lincoln v. Cassady, 517

S.W.3d 11 (Mo. Ct. App. W.D. 2016). While the hearing
court found that Mr. Dunn had met the gateway claim of
actual innocence pursuant to Schlup, supra., it also ruled
that his underlying constitutional claims were without
merit. Dunn’s applications to the Appellate Division and
Supreme Court in Missouri were all denied, as was his
application for successive writ of habeas corpus before the
United States Court of Appeals Eighth Circuit.

VI. REASONS FOR GRANTING THE WRIT

Preliminary Statement

This Court’s power to grant an extraordinary writ

is very broad but reserved for exceptional cases in which
“appeal is a clearly inadequate remedy.” Ex parte Fahey,
332 U.S. 258, 260 (1947). 28 U.S.C. § 2244(b)(3)(e) prevents
this Court from reviewing the court of appeals’ order
(Appendix C) denying Mr. Dunn leave to file a second
habeas petition by appeal or writ of certiorari. The
provision, however, has not repealed this Court’s authority
to entertain original habeas petitions, Felker, supra.,
nor has it disallowed this Court from “transferring the
application for hearing and determination” to the district
court pursuant to 28 U.S.C. § 2241(b).

Rule 20 of this Court requires a petitioner seeking

writ of habeas corpus demonstrate that (1) “adequate
relief cannot be obtained in any other form or in any
other court;” (2) “exceptional circumstances warrant the
exercise of this power;” and (3) “the writ will be in aid of
the Court’s appellate jurisdiction.” Further, this Court’s
authority to grant relief is limited by 28 U.S.C. § 2254, and
any considerations of a second petition must be “inform[ed]
 16

by 28 U.S.C. § 2244(b). See Felker, 518 U.S. at 662-63.

Mr. Dunn’s last hope for relief lies with this Court, as
he has exhausted all remedies before the state and federal
courts. His case presents exceptional circumstances that
warrant exercise of this Court’s discretionary powers.

During his post-conviction proceedings, Christopher

Dunn proved that no reasonable juror would have convicted
him after the hearing court took testimony from witnesses
and heard and considered all the evidence both from the
State and from Dunn. This Court has yet to definitively
hold that defendants have a right to pursue freestanding
actual innocence claims in a post-conviction setting. The
closest to such precedent came from In re Davis, 130 S. Ct.
1 (2009), when this Court held that a United States District
Court should  “receive testimony and make findings of
fact as to whether evidence that could not have been
obtained at the time of trial clearly establishes petitioner’s
innocence.” With this decision, this Court was implying
that if a petitioner “clearly establishes” his “innocence,”
he or she is entitled to relief.

In 2020, a judge in Missouri state court found that no

jury would convict Christopher Dunn with the evidence
presented in Christopher’s post-conviction proceedings,
stating:

As was noted earlier, in the instant case

new evidence has emerged, in addition to
the recantations, which make it likely that
reasonable, properly instructed jurors would
find [Christopher Dunn] not guilty. House, 547
U.S. at 538. Eugene Wilson, an independent
eyewitness who has no reason to lie and
 17

was the only eyewitness in the case who is

not currently incarcerated for other crimes,
provided credible testimony that none of the
witnesses at the scene of the shooting could
have identified the assailant. Mr. Wilson’s
testimony provides corroborating evidence
to buttress the recantations of Mr. Stepp and
Mr. Davis. Coupled with the evidence in the
record that Petitioner had an alibi, this Court
does not believe that any jury would now
convict Christopher Dunn under these facts.
Instead, this Court concludes that, based on
all the evidence considered under the dictates
of Schlup, it is more likely than not that any
reasonable juror would have reasonable doubt.

State ex rel.  Dunn v. Buckner,  17TE-CC00059 and

SC99157, p. 19 (Sept. 23, 2020) (Judge William E. Hickle).
See Appendix B, pg 22a.

Missouri Circuit Judge William E. Hickle came to

this determination after taking testimony and reviewing
all the evidence as was directed under In re Davis, supra.
See 28 U.S.C. § 2244(b)(2)(B)(ii); see also House v. Bell,
547 U.S. 518 (2006). Notably, Judge Hickle also ruled that
the evidence presented in the motion was newly discovered
and could not have been discovered with due diligence.
See 28 U.S.C. § 2244(b)(2)(B)(i); State ex rel.  Dunn v.
Buckner,  17TE-CC00059 and SC99157 (Citing State ex
rel. Griffin v. Denney, 347 S.W.3d 73, 77 (Mo. banc 2011)).
As the first recantation did not occur until 2005, the
state court judge ruled there was cause and prejudice to
allow a review of Dunn’s due process claims. See Murray
v. Carrier, 477 U.S. 478 (1986); State ex rel. Griffin v.
Denney, 347 S.W.3d 73, 77 (Mo. banc 2011). The state court
 18

concluded that Christopher Dunn proved, with both old

and new evidence, which the jury never heard, that he is
actually innocent. See Appendix B.

The question is, why is Christopher Dunn still in

prison? The answer is that the State of Missouri case law
bars freestanding actual innocence claims’ application
to prisoners who are not sentenced to death. See In re
Lincoln v. Cassady, 517 S.W.3d 11 (Mo. Ct. App. W.D.
2016). The Missouri courts believe that an innocent
man, who allegedly received a fair trial, allegedly does
not have an underlying constitutional violation, and was
convicted, does not have a due process right to be free
from unlawful seizures and incarceration. In re Lincoln
v. Cassady, 517 S.W.3d at 21-23. A freestanding claim of
actual innocence is rooted in several concepts, including
the constitutional rights to substantive and procedural due
process, and the constitutional right not to be subjected
to cruel and unusual punishment. See generally Jonathan
M. Kirshbaum,  Actual Innocence after Friedman v.
Rehal: The Second Circuit Pursues a New Mechanism
for Seeking Justice in Actual Innocence Cases, 31 Pace
L Rev 627, 660-661 [Spring 2011]; People v. Cole, 1 Misc
3d 531, 541-542 (N.Y. Kings Cty. Sup. Ct. 2003).

The evidence now before this Court demands review,

as the State of Missouri is unreasonably applying Supreme
Court precedent and keeping innocent people in prison
who are not sentenced to death. A judge has already
heard this case and determined that no jury would have
convicted Christopher Dunn had it heard such evidence. 2

2.  Specifically, Judge Hickle stated that he did not believe

that any jury would convict Christopher Dunn after hearing the
evidence before him.
 19

Here, this Court should overrule the atrocious

precedent set in In re Lincoln v. Cassady, supra. Mr. Dunn
has proven his innocence and deserves, at the very least,
a new trial.

Additionally, this Court should find that it is cruel and

unusual punishment for an individual to remain in prison
for a crime that he did not commit. See U.S. Const. 8th &
14th Amends. Dunn’s current imprisonment would shock
the conscience of a reasonable citizen. His continued
incarceration is a substantive due process violation,
violates his Eighth Amendment right to be free from such
unlawful punishment, and may only be remedied by this
Court’s action under 28 U.S.C. 2241.

POINT I

STATEMENT OF REASONS FOR NOT

FILING IN THE DISTRICT COURT.

As required by Rule 20.4 and 28 U.S.C. §§ 2241 and

2242, Mr. Dunn states that he has not applied to the
district court because the circuit court prohibited such
an application. See Appendix A. Mr. Dunn exhausted his
state remedies for stand-alone innocence claims. Since
Mr. Dunn exhausted his state remedies and was denied
permission by the Court of Appeals for the 8th Circuit to
file a second habeas petition, he cannot obtain relief in any
other form or from any other court.
 20

POINT II

THE EXCEPTIONAL CIRCUMSTANCES OF

THIS CASE WARRANT THE EXERCISE OF
THIS COURT’S JURISDICTION BECAUSE A
STATE COURT JUDGE FOUND THAT NO JURY
WOULD CONVICT DUNN AFTER HEARING AND
CONSIDERING ALL OF THE EVIDENCE IN MR.
DUNN’S POST-CONVICTION PROCEEDINGS. MR.
DUNN REMAINS IN PRISON ONLY BECAUSE
MISSOURI STATE COURTS DO NOT RECOGNIZE
FREE-STANDING INNOCENCE CLAIMS FOR
DEFENDANTS NOT SENTENCED TO DEATH.

The Circuit Court of Texas County, Missouri found

that, after hearing testimony and considering all the
evidence presented by both the State of Missouri and
Christopher Dunn, no jury would convict Dunn. See
Appendix B, pg 22a. Based upon this finding, Dunn was
entitled to habeas relief, yet he was barred because
of the unconscionable Missouri state court precedent
set in In re Lincoln v. Cassady, 517 S.W.3d 11 (Mo. Ct.
App. W.D. 2016), which held that inmates who were not
sentenced to death were not entitled to habeas relief
under freestanding claims of actual innocence. This is an
unreasonable application of Supreme Court precedent
both in the fact that (a) the State of Missouri’s denial of
habeas relief to an innocent man is a violation of the 8th and
14th Amendments of the United States Constitution and
(b), pursuant to Article 1 Section 9, Clause 2 of the United
States Constitution, the State of Missouri is suspending
habeas corpus relief that is due to Dunn.
 21

It is true that there is no constitutional right to an

appeal or post-conviction hearing. Abney v. United States,
431 U.S. 651, 656, 97 S. Ct 2034, 2038 (1977). Having
made the right to post-conviction proceedings available
under Mo. R. 29.15 and Mo. R. 91, however, the State of
Missouri is obligated by the United States Constitution
to avoid impeding effective access to or relief under the
post-conviction process. Rinaldi v. Yeager, 384 U.S. 305,
86 S.Ct 1497, (1966); Douglas v. California, 372 U.S. 353,
83 S.Ct 814 (1963); Griffin v. Illinois, 351 U.S. 12, 76 S.Ct
585, (1956) (quoting from Harris v. Kuhlman, 601 F.Supp.
987 (E.D.N.Y. 1985)).

Here, the habeas court in Missouri found that Dunn

had presented evidence that was newly discovered and
that established his innocence. See Appendix B, pg 22a. 3
The habeas court specifically held it did “not believe that
any jury would now convict Christopher Dunn under these
facts.” See Appendix B, pg 22a. The state court came to
this conclusion by finding the following:

a. The affidavit and hearing testimony of eyewitness

Eugene Wilson was both independent and
credible.

b. The recantations of Michael Davis and DeMorris

Stepp were bolstered by independent evidence
that the hearing court deemed credible. While
the judge concluded that DeMorris Stepp was a
3.  This Court should know that the judge in the state court
proceeding specifically addressed the newly discovered aspect of
the evidence and found that any procedural hurdle based upon
the timing discovery of the evidence was defeated. See Appendix
B, pg 22a.
 22

proven liar, the hearing court specifically found

that both Davis’s and Stepp’s recantations were
corroborated by Eugene Wilson, an independent
eyewitness who testified that neither Davis nor
Stepp could have identified the shooter because
of their positions at the time of the shooting.

c. The hearing court found that Petitioner’s claims

of innocence were also corroborated by Catherine
Jackson, Nicole Bailey, and Curtis Stewart,
who were presented during Dunn’s last post-
conviction hearing, the alibi witnesses, and the
statement of the deceased’s brother, Dwayne
Rogers,4 that Mr. Dunn presented in his Missouri
Rule 29.15 hearing in the 1990’s prior to his direct
appeal.

Christopher Dunn has presented a freestanding

claim of actual innocence, because no jury would convict
him with the evidence presented to the Circuit Court in
Missouri. His continued incarceration is a violation of the
Eighth Amendment – it is cruel and unusual punishment.
This is plainly a constitutional violation that this Court
recognized in its seminal decision In re Davis, 130 S. Ct.
1 (2009). And as this Court required to obtain habeas
relief in Davis, here, a hearing court took testimony and
evidence and found that there was clear and convincing
evidence, i.e., no jury would convict, that Christopher
Dunn is an innocent man. As such, this Court should
either grant immediate relief and free an innocent man
or order a new trial.

4.  Dwayne Rogers testified that Petitioner was not the

man who had killed Ricco Rogers, his brother, and that Dwayne
knew the identity of the actual killer.
 23

Contrary to popular belief, this Court never foreclosed

freestanding actual innocence claims. As more and more
evidence of wrongful convictions has come to light, this
Court, like all courts around the country, has recognized
that there may be innocent people languishing in prison.
In Herrera v. Collins, 506 U.S. 390 (1993), a case from
1993, this Court set the stage for freestanding claims of
actual innocence. But the criminal justice system, and
this Court, for that matter, have greatly progressed since
1993, recognizing that there are innocent people in prison.
In House v. Bell, 547 U.S. 518, 554-555 (2006), this Court
specifically addressed a petitioner’s freestanding claim
and did not foreclose relief for a prisoner who makes a
claim of actual innocence that is unaccompanied by an
underlying constitutional violation outside of his or her
incarceration. But that changed when the Supreme Court
held that the execution of an innocent man is cruel and
unusual punishment. In Re Davis, supra.

Specifically, In Re Davis made it clear that habeas

relief is appropriate for an innocent man who does not
have an underlying constitutional violation:

Second, JUSTICE  SCALIA  assumes as a

matter of law that, “[e]ven if the District Court
were to be persuaded by Davis’s affidavits,
it would have no power to grant relief” in
light of 28 U.S.C. § 2254(d)(1). Post, at 2. For
several reasons, however, this transfer is by no
means “a fool’s errand.” Post, at 5. The District
Court may conclude that § 2254(d)(1) does not
apply, or does not apply with the same rigidity,
to an original habeas petition such as this.
See Felker v. Turpin, 518 U.S. 651, 663, 116 S.
 24

Ct. 2333, 135 L. Ed. 2d 827 (1996) (expressly

leaving open the question whether and to
what extent the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA) applies
to original petitions).  The court may also
find it relevant to the AEDPA analysis that
Davis is bringing an “actual innocence”
claim.  See,  e.g.,  Triestman  v.  United States,
124 F.3d 361, 377-380 (CA2 1997)  (discussing
“serious” constitutional concerns that would
arise if AEDPA were interpreted to bar judicial
review of certain actual innocence claims); Pet.
for Writ of Habeas Corpus 20-22 (arguing that
Congress intended actual innocence claims to
have special status under AEDPA).  Even if
the court finds that § 2254(d)(1) applies in full,
it is arguably unconstitutional to the extent it
bars relief for [an incarcerated] inmate who has
established his innocence. Alternatively, the
court may find in such a case that the statute’s
text is satisfied, because decisions of this Court
clearly support the proposition that it “would
be an atrocious violation of our Constitution
and the principles upon which it is based” to
[imprison] an innocent  person. In Re Davis,
565 F.3d 820, 830 (11th Cir. 2009) (Barkett, J.,
dissenting); cf. Teague v. Lane, 489 U.S. 288,
311-313, 109 S. Ct. 1060, 103 L. Ed. 2d 334
(1989) (plurality opinion).

JUSTICE SCALIA would pretermit all of these

unresolved legal questions on the theory that
we must treat even the most robust showing of
actual innocence identically on habeas review
 25

to an accusation of minor procedural error.

Without briefing or argument, he concludes
that Congress chose to foreclose relief and that
the Constitution permits this. But imagine a
petitioner in Davis’s situation who possesses
new evidence conclusively and definitively
proving, beyond any scintilla of doubt, that he is
an innocent man. The dissent’s reasoning would
allow such a petitioner to be [incarcerated]
nonetheless. The Court correctly refuses to
endorse such reasoning.

In re Davis, 130 S. Ct. at 1-2. (Justice Stevens, concur.)5

Even the Eighth Circuit, which heard Dunn’s petition

for a successive habeas petition, has (a). never foreclosed
a petitioner from making a freestanding actual innocence
claim and (b). actually recognizes freestanding actual
innocence claims, albeit, at a higher standard than
gateway innocence claims. Feather v. United States, 18
F.4th 982 (8th Cir. 2021) (recognizing a freestanding actual
innocence claim); Dansby v. Hobbs, 766 F.3d 809, 816 (8th
Cir. 2014) (stated that the freestanding claim is a higher

5.  Any allusion by the State of Missouri that Dunn has other
recourse is absolutely misplaced. Significantly, Justice Stevens’
response to Judge Scalia’s dissent addressed the same point that
the State of Missouri often points to as an alternative avenue for
Dunn to seek relief – via DNA testing, clemency, or Mo. Rev. Stat.
§ 547.031. Christopher Dunn should not have to present his case to
a prosecutor, who has an obligation to the victim and to vigorously
defend convictions. Likewise, he should not have to seek mercy
from the governor. Lastly, to punish a defendant for not having
a DNA case is wholly arbitrary. These avenues still deny Dunn’s
right to the criminal justice system;-it denies him due process.
 26

standard than a gateway innocence claim); Cornell v.

Nix, 119 F.3d 1329, 1334 (8th Cir. 1997) (recognizing free
standing actual innocence and defining the standard
as “clear and convincing evidence” or “unquestionably
established” innocence).

To be clear, this Court in In Re Davis did not

differentiate between petitioners who are facing death or
just imprisonment. Any restriction of a petitioner’s right
to remain at liberty based upon a wrongful conviction is
a constitutional violation that entitles a petitioner to relief
under 28 U.S.C. 2254 and 28 U.S.C. 2241. Likewise, this
Court has set precedent here for the law that applied
to cases concerning inmates facing death also being
applicable to inmates who are imprisoned for however long,
let alone life without parole plus 90 years as Christopher
Dunn is facing. See, e.g., Strickland v. Washington, 466
U.S. 668 (1984); Wiggins v. Smith, 539 U.S. 510 (2003); see
also Feather v. United States, 18 F.4th 982; Cornell v. Nix,
119 F.3d at 1334 (While the standard for a freestanding
claim of actual innocence is more demanding than a
gateway claim of actual innocence, a freestanding claim
is available to non-death sentenced defendants).

The state court found that Christopher Dunn’s claims

of innocence are credible and held that no jury would
have convicted Dunn had it heard the evidence before
the hearing court. Legal rulings and factual findings of
state courts are entitled to deference. 28 U.S.C. 2254(d);
see also Commissioner v. Duberstein, 363 U.S. 278 (1960).
Therefore, this Court should grant habeas relief to
Christopher Dunn.
 27

POINT III

THE COURT OF APPEALS ERRED IN BARRING

CHRISTOPHER DUNN’S SECOND PETITION
BECAUSE MR. DUNN MET THE STANDARD
OF A FREESTANDING CLAIM OF ACTUAL
INNOCENCE WHEN THE HEARING COURT
DETERMINED THAT NO JURY WOULD CONVICT
DUNN HAD IT HEARD THE EVIDENCE DUNN
PRESENTED IN HIS POST-CONVICTION
PROCEDINGS.

The Court of Appeals for the 8th Circuit denied Mr.

Dunn’s application to file a second petition for habeas relief
in summary denial. See Appendix A, 1a.

The purpose of 28 U.S.C. § 2244(b)(2) that “informs”

this Court’s consideration of Mr. Dunn’s original habeas
petition are twofold: § 2244(b)(2)(B)(ii) requires that the
petitioner diligently discover and present his new evidence
in his first habeas petition. Mr. Dunn has diligently done
so. § 2244(b)(2)(B)(i) requires that the claim raised in a
second petition “impugn” the reliability of the underlying
conviction. Mr. Dunn’s stand-alone innocence claim does
exactly that, which should have caused the 8th Circuit to
hear Mr. Dunn’s petition.

Here, the state court found that no jury would have

convicted Dunn had the jury heard the evidence that was
presented to the hearing court. Mr. Dunn submits that
he met the standard for a freestanding claim of innocence
when the state court came to this finding. Likewise, the
state court also found that Mr. Dunn’s evidence was newly
discovered, timely presented, and defeated any procedural
 28

hurdle based upon the gateway standard defined in Schlup,

supra. See Appendix B.

This Court has been clear that, while the standard

of a freestanding actual innocence claim does not rise to
the level of the standard of beyond a reasonable doubt,
it is more demanding than the gateway claim of actual
innocence, which is that a person is more probably
innocent than not. See Schlup v. Delo, 513 U.S. 298, 327
(1995) (citing Sawyer v. Whitley, 505 U.S. 333(1992)
(Holding that freestanding claims of actual innocence
must be proven by clear and convincing evidence that no
reasonable juror would convict); see also Cornell v. Nix,
119 F.3d at 1334.

Mr. Dunn submits that the standard for a freestanding

claim of actual innocence is “clear and convincing
evidence”. See Schlup v. Delo, 513 U.S. at 327. And this is
the general understanding of courts around the country.
After remand in In re Davis, the district court borrowed
the “clear and convincing evidence” standard from Sawyer
and Delo, which meant, “Mr. Davis must show by clear
and convincing evidence that no reasonable juror would
have convicted him in the light of the new evidence.” In re
Davis, No. CV409-130, 2010 WL 3385081, at *47 (S.D.Ga.
Aug. 24, 2010). This Court apparently concurred with the
district court’s standard of review when it affirmed the
district court’s denial of Davis’s habeas petition. In re
Davis, 137 S. Ct. 2273 (2017).

Clear and convincing evidence of evidence means that

no reasonable jury or juror would convict the defendant
had the jury heard that evidence. People v. Hamilton,
115 A.D.3d 12, 15, 979 N.Y.S.2d 97, 109 (N.Y.App.Div. 2d
 29

Dep’t 2014) (New York has held that clear and convincing
is the standard for a freestanding claim of innocence.
Clear and convincing evidence means that no reasonable
juror would convict); People v. Washington, 171 Ill. 2d 475,
665 N.E.2d 1330, 216 Ill. Dec. 773 (Ill. 1996) (In Illinois,
freestanding actual innocence claims must be supported
by evidence that is new, material, noncumulative and,
most importantly, ‘of such conclusive character’ as
would ‘probably change the result on retrial.’); Miller
v. Comm’r of Correction, 242 Conn. 745, 700 A.2d 1108
(Conn. 1997) (In Connecticut, in a habeas corpus claim of
actual innocence, an inmate must establish by clear and
convincing evidence that he was actually innocent and
that no reasonable person would have found him guilty
of his charged crime.); In re Hardy, 41 Cal. 4th 977, 1016
(Cal. Sup. Ct. 2007) (California’s standard for actual
innocence is that the evidence must undermine the entire
prosecution’s case and point unerringly to innocence or
reduced culpability).; Ex parte Elizondo, 947 S.W.2d 202
(Tex. Crim. App. 1996) (Texas’s standard is clear and
convincing evidence that no rational jury would convict);
State ex rel. Amrine v. Roper, 102 S.W.3d 541 (Mo. 2003)
(Missouri’s standard is a clear and convincing showing
of actual innocence that undermines confidence in the
correctness of the judgment. Unfortunately, Missouri does
not believe that this standard applies to inmates who are
not sentenced to death); Montoya v. Ulibarri, 163 P.3d 476,
484 (N.M. 2007) (In New Mexico, a petitioner “asserting a
freestanding claim of innocence must convince the court
by clear and convincing evidence that no reasonable juror
would have convicted him in light of the new evidence”).

The state court ruled that no jury would have

convicted Dunn with the evidence that was presented
 30

in Dunn’s habeas motion. In other words, Dunn met the

standard of clear and convincing evidence of innocence.
The State Court’s failure to release Dunn was a violation of
his 8th and 14th Amendment rights under the United States
Constitution and the Supreme Court precedent held in In
Re Davis, supra. As such, this Court has the authority to
release Dunn because he has proven that he is innocent.

POINT IV

CHRISTOPHER DUNN’S RIGHT TO BE FREE

FROM CRUEL AND UNUSUAL PUNISHMENT IS
BEING VIOLATED EVERY MOMENT THAT HE
REMAINS IN PRISON. IT WOULD SHOCK THE
CONSCIENCE OF EVERY REAONABLE CITIZEN
TO LEARN THAT CHRISTOPHER DUNN, A
DEFENDANT WHO WAS FOUND INNOCENT BY
A COURT, REMAINS IN PRISON. See 8th & 14th
Amend. U.S. Const.

Here, Judge Hickle, the Circuit Court judge of Texas

County, Missouri, found that he did not believe any
jury would convict Christopher Dunn had it heard the
evidence that he heard during Christopher Dunn’s post-
conviction proceedings. Judge Hickle was constrained
by Missouri precedent that an innocent man in the State
of Missouri can receive relief only when he either has
met the gateway standard of actual innocence and has
an underlying constitutional claim or the innocent man
has met the freestanding standard of actual innocence
and is sentenced to death. Unfortunately for Christopher
Dunn, he was not sentenced to death, but to life in
prison, and, while Judge Hickle found that Dunn met the
standard for both a freestanding and gateway claim of
 31

actual innocence, Dunn had not presented a meritorious

underlying constitutional claim. Essentially, Judge Hickle
was left with the fact that he could not free Mr. Dunn
based upon precedent, even though Judge Hickle did not
believe that Christopher Dunn murdered Ricco Rogers.
See Appendix B.

This is an affront to the purpose of our justice system,

and it stands in direct conflict with the United States
Constitution. As was agreed upon by our founding fathers
in the preamble of the United States Constitution:

“We the People of the United States, in Order

to form a more perfect Union, establish Justice,
insure domestic Tranquility, provide for the
common defense, promote the general Welfare,
and secure the Blessings of Liberty to ourselves
and our Posterity, do ordain and establish this
Constitution for the United States of America.”

It is beyond obvious and commonsense that an

innocent man’s imprisonment is in direct violation of the
basic principles that the founding fathers agreed were to
be the heartbeat of the Constitution.

An innocent man’s imprisonment is exactly the

purpose behind the last round of protection that a
criminal defendant has, which is the collateral attack and
petition for habeas corpus. In fact, Judge Henry Friendly
specifically stated that all habeas petitions should come
with colorable claims of innocence. Friendly, Henry J.
(1970) “Is Innocence Irrelevant? Collateral Attack on
Criminal Judgments.” University of Chicago Law Review:
Vol. 38: Iss. 1, Article 9, page 142. And Justice Harry
 32

Black was clear that innocence was always a factor in his

consideration of habeas petitions:

...the defendant’s guilt or innocence is at least

one of the vital considerations in determining
whether collateral relief should be available to
a convicted defendant… In collateral attacks
. .. I would always require that the convicted
defendant raise the kind of constitutional claim
that casts some shadow of a doubt on his guilt.

Kaufman v. United States, 394 U.S. 217, 235-36, 242 (1969)

(dissenting opinion).

This Court has granted habeas relief solely based

upon an Eighth Amendment claim of cruel and unusual
punishment when an underlying constitutional claim did
not exist. See e.g., Roper v. Simmons, 543 U.S. 551 (2005)
(Execution of juveniles is forbidden); Atkins v. Virginia,
536 U.S. 304 (2002) (Execution of the mentally retarded
is forbidden).

Here, Christopher Dunn has clearly established

his innocence as set out in In re Davis, supra. To deny
him his right to liberty and to be free from cruel and
unusual punishment is an affront to our society and
leaves everyone vulnerable to punishment without
guilt. County of Sacramento v. Lewis,  523 U.S. 833,
842, 118 S. Ct. 1708, 140 L. Ed. 2d 1043 (1998) (“Where
a particular Amendment provides an explicit textual
source of constitutional protection against a particular
sort of government behavior, that Amendment, not the
more generalized notion of substantive due process, must
be the guide for analyzing these claims.”). Moreover,
 33

a reasonable citizen’s conscience would be shocked to

learn that Dunn, proven innocent, still remains in prison.
Sacramento, 523 U.S. at 845-46 (citing Wolff v. McDonnell,
418 U.S. 539, 558 (1974) (When evaluating whether a
governmental action violates a substantive due process
right, the threshold determination is whether the conduct
“shocks the conscience.” “The touchstone of due process
is protection of the individual against arbitrary action of
government,” including protection against “the exercise
of power without any reasonable justification in service
of a legitimate governmental objective…”).

There is no legitimate governmental objective to keep

Christopher Dunn, an innocent man, in prison. Therefore,
this Court should exercise its habeas powers pursuant to
28 U.S.C. 2241.

VII. CONCLUSION AND PRAYER FOR RELIEF

Acquitting the guilty and condemning the innocent—

the LORD detests them both.

Proverbs 17:15 (NIV Edition)

The country needs guidance as to whether a freestanding

claim of actual innocence indeed exists, what the standard
is, and when that standard is met to prove the freestanding
claim. The state court in the case at bar found that Dunn
presented evidence that was new, internally consistent, and
credible and that this evidence proved that there is no jury
that would have convicted Dunn had that evidence been
presented at Dunn’s trial. The court also ruled that it is
more likely than not that any reasonable juror would have
reasonable doubt. As such, Mr. Dunn has proven himself
 34

innocent and this Court should grant him habeas relief. His
continued punishment is a clear violation of his constitutional
right to liberty and Eighth Amendment right to be free from
cruel and unusual punishment.

Respectfully submitted,
Justin C. Bonus
Counsel of Record
Justin C. Bonus Attorney at Law
118-35 Queens Blvd., Suite 400
Forest Hills, NY 11375
(347) 920-0160
justin.bonus@gmail.com

Counsel for Petitioner

APPENDIX
 i

TABLE OF APPENDICES
Page
APPENDIX A — ORDER OF THE UNITED
STATES COURT OF APPEALS FOR THE
EIGHTH CIRCUIT, FILED JULY 27, 2022 . . . . . 1a

APPENDIX B — ORDER AND JUDGMENT

OF THE CIRCUIT COURT OF TEX AS
COUNTY, MISSOURI, DATED SEPTEMBER
23, 2020 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3a

Appendix C — memorandum and order

of the united states district
court for the eastern district
of missouri, eastern di v ision,
filed march 27, 2000 . . . . . . . . . . . . . . . . . . . . 29a
 1a

APPENDIXAppendix A OF THE
A — ORDER
UNITED STATES COURT OF APPEALS FOR
THE EIGHTH CIRCUIT, FILED JULY 27, 2022

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No: 22-1892

CHRISTOPHER DUNN,
Petitioner,
v.
MICHELE BUCKNER, WARDEN,
Respondent.

Appeal from U.S. District Court for the

Eastern District of Missouri - St. Louis
(4:97-cv-00331-MLM)

JUDGMENT

Before LOKEN, COLLOTON, and GRASZ, Circuit

Judges.

The motion for authorization to file a successive habeas

application in the district court is denied. Mandate shall
issue forthwith.

July 27, 2022

 2a

Appendix A

Order Entered at the Direction of the Court:

Clerk, U.S. Court of Appeals, Eighth Circuit.
__________________________
/s/ Michael E. Gans
 3a

APPENDIX B —Appendix B
ORDER AND JUDGMENT
OF THE CIRCUIT COURT OF TEXAS COUNTY,
MISSOURI, DATED SEPTEMBER 23, 2020

IN THE CIRCUIT COURT

OF TEXAS COUNTY, MISSOURI

Case No. 17TE-CC00059

CHRISTOPHER DUNN,

Petitioner,

v.

MICHAEL BOWERSOX, SUPERINTENDENT,

SOUTH CENTRAL CORRECTIONAL CENTER,

Respondent.

ORDER AND JUDGMENT

Pending before the Court is Petitioner’s petition for

a writ of habeas corpus challenging his St. Louis City
convictions for first degree murder, two counts of assault
in the first degree, and three counts of armed criminal
action, for which he received a sentence of life without
parole plus ninety (90) years. The original petition raised
two claims for relief: 1) a freestanding claim of actual
innocence under State ex rel. Amrine v. Roper, 102 S.W.3d
541 (Mo. banc 2003) and, 2) a perjured testimony claim
under Napue v. Illinois, 360 U.S. 264 (1959).
 4a

Appendix B

An evidentiary hearing was conducted on May 30,

2018. At the hearing, Petitioner presented the testimony
of DeMorris Stepp, who recanted his trial testimony and
stated he falsely identified Petitioner at trial as the person
who committed these crimes. Petitioner also presented
the testimony of Curtis Stewart, Nicole Bailey, and an
independent eyewitness to the shooting, Eugene Wilson.
At the conclusion of the hearing, the Court agreed to keep
the record open to give Petitioner the opportunity to take
the deposition of the other eyewitness who testified at the
1991 trial, Michael Davis Jr., who was in custody in the
State of California. Counsel for Petitioner then informed
the Court that Mr. Davis absconded from a drug treatment
center shortly after the hearing was conducted and was
a fugitive from justice, last seen in California. Petitioner
asked that the Court consider previous exhibits submitted,
including an affidavit and transcript of a tape recorded
statement, where Mr. Davis allegedly recanted his trial
testimony. (See Exh’s 2, 7).

On August 31, 2018, Petitioner filed a motion for leave

to amend his habeas petition, pursuant to Rule 55.33(b),
to conform to the evidence that was presented at the
evidentiary hearing. Specifically, Petitioner contended
that Mr. Stepp’s testimony at the May 30, 2018 hearing
provided a factual basis for Petitioner to raise a third claim
for relief involving the State’s suppression of exculpatory
evidence under Brady v. Maryland, 373 U.S. 83 (1963)
and, also provided additional facts to bolster his previously
advanced perjured testimony claim.

Contemporaneously with this motion pursuant to

Rule 55.33(b), Petitioner filed a first amended petition for
 5a

Appendix B

a writ of habeas corpus that supplemented his perjured

testimony claim and added a third claim for relief under
Brady that alleged that the State suppressed exculpatory
and material impeachment evidence regarding an
agreement that the State had with DeMorris Stepp that
he would receive probation on his pending charges in
exchange for his testimony against Petitioner. The Court
grants Petitioner’s motion and permits the filing of the
first amended petition.

RECITATION OF THE FACTS

Petitioner, Christopher Dunn, was convicted by a

jury on July 18, 1991, for the May 18, 1990 murder of
Ricco Rogers. Petitioner was also convicted of two counts
of assault in the first degree and three counts of armed
criminal action arising out of the same occurrence.
Petitioner was subsequently sentenced to life without
parole and consecutive sentences of ninety years by St.
Louis City Circuit Judge Michael Calvin.

The State’s case rested upon the eyewitness testimony

of fifteen year old DeMorris Stepp and twelve year old
Michael Davis. Both of these young men testified at trial
that on May 18, 1990, these two juveniles and Mr. Rogers
were sitting on a porch at a house at 5607 Labadie in the
City of St. Louis. Just before midnight, Mr. Stepp testified
that he saw Petitioner standing in the gangway of the
house next door. A few minutes later, shots rang out and
all three men tried to run away. Both Mr. Stepp and Mr.
Davis testified at trial that Petitioner was the person who
fired the fatal shots that caused the death of Mr. Rogers.
 6a

Appendix B

At the time he testified, Mr. Stepp had pending

charges for armed robbery, armed criminal action,
unlawful use of a weapon, and tampering in the first
degree. (Exh. 5). In exchange for his testimony against
Petitioner, the prosecution dropped the armed criminal
action charges against Mr. Stepp, who then pleaded
guilty to the remaining charges. The state recommended
a fifteen-year sentence for the charges; however, the
sentencing judge granted Mr. Stepp probation. (Exh. 5).

A fter Petitioner was convicted and sentenced,

Petitioner filed a timely notice of appeal and a timely
Rule 29.15 motion pursuant to Missouri’s then existing
consolidated post-conviction review system in criminal
cases. After holding an evidentiary hearing, the trial court
denied Petitioner’s Rule 29.15 motion. On consolidated
appeal, the Missouri Court of Appeals, Eastern District
affirmed Petitioner’s convictions and the denial of his post-
conviction motion in State v. Dunn, 889 S.W. 2d 65 (Mo.
App. E.D. 1994). Petitioner, thereafter, unsuccessfully
sought federal habeas corpus relief pursuant to 28 U.S.C.
§ 2254.

In 2005, DeMorris Stepp signed a sworn affidavit

claiming that he committed perjury when he identified
Christopher Dunn as the man he saw shoot Ricco Rogers.
(See Exh. 1). Mr. Stepp indicated he was pressured by
police and prosecutors to falsely identify Mr. Dunn as the
shooter because they wanted him off the streets. (Id.).
Mr. Stepp also asserted that the prosecution utilized Mr.
Stepp’s pending felony charges as leverage to convince
him to testify that Christopher Dunn was the shooter and
 7a

Appendix B

promised him he would avoid jail time if he did so. (Id.).

Mr. Stepp’s affidavit states that because it was so dark
that night, he could not identify who the person was who
fired the fatal shot. (Id.).

At the recent evidentiary hearing, Mr. Stepp testified

that he committed perjury when he identified Petitioner
as the shooter. In addition, he also testified that he lied
under oath regarding the plea bargain he reached with the
prosecution about his pending charges. Mr. Stepp testified
that he had an understanding with the prosecution that,
if he testified against Petitioner, he would be guaranteed
probation and there was no danger in his mind that he
would receive a fifteen year sentence.

At the Court’s request, the record was recently

reopened to allow the presentation of a transcript from
Mr. Stepp’s 1991 guilty plea and sentencing, which was
marked and received as Petitioner’s Exhibit 19. Though the
transcript corroborates that Mr. Stepp received probation,
it does not evidence an agreement or understanding with
Mr. Stepp or anyone else that Mr. Stepp would receive
probation.

On July 17, 1991, in Petitioner’s trial, Mr. Stepp

testified against Petitioner. Mr. Stepp acknowledged to the
jury that he had unrelated charges pending against him.
He testified that he had reached a plea agreement where
the state dropped armed criminal action charges to give
Defendant a chance at probation, and that the state was
recommending that he receive fifteen years in prison (Tr.
147, 155-156). Later that same day, on July 17, 1991, Mr.
 8a

Appendix B

Stepp pleaded guilty before Judge Michael Calvin, who was

also the judge presiding over Petitioner’s trial. In cause
number 911-640, Mr. Stepp was charged with robbery
in the first degree, armed criminal action, tampering
in the first degree, and unlawful use of a weapon. At
the commencement of the plea hearing, the prosecution
announced that there was a plea agreement whereby the
State would recommend concurrent sentences of fifteen
years on the robbery charge, one year on the tampering
charge, and one year on the weapons charge, all to run
concurrently (Ex. 19, p. 2). The armed criminal action
charge would be dismissed pursuant to this plea bargain.
During the plea colloquy, the trial court noted that this
plea bargain was offered in consideration for Mr. Stepp’s
testimony in the case that he was presently trying. After
the court accepted the plea, a presentence investigation
was ordered and sentencing was set for August 30, 1991.

At the sentencing hearing, Mr. Stepp’s counsel

requested on behalf of Mr. Stepp probation rather than
fifteen years imprisonment. Judge Calvin then conducted
a lengthy hearing in which he inquired of other family
members of Mr. Stepp who were present in the courtroom,
and ultimately elected to suspend imposition of sentence
on all three charges, granting Mr. Stepp three years of
probation. The prosecutor remained silent during the
sentencing hearing.

It appears to this Court that no agreement for

probation existed at the time of Mr. Stepp’s testimony at
Petitioner’s trial for Mr. Stepp to receive probation. For
any such agreement to be effective, the judge sentencing
 9a

Appendix B

Mr. Stepp would have had a need to know it, which means
that Judge Calvin would have been a participant in a
scheme, along with the prosecutor, to hide from the jury
an agreement that Mr. Stepp would receive probation
rather than fifteen years in prison. Rather, it appears that
Judge Calvin at Mr. Stepp’s sentencing hearing made an
independent determination as to whether young DeMorris
Stepp should be granted probation rather than being sent
to prison for fifteen years. Judge Calvin ultimately decided
on probation, not because the parties had agreed to it, but
because Judge Calvin deemed it appropriate.

After he received probation, Mr. Stepp repeatedly

violated his probation and ultimately served his fifteen
year sentence. (Exh. 5). After he was released, Mr.
Stepp was subsequently convicted of first degree murder
involving the killing of his girlfriend and is currently
serving a sentence of life without parole at the Jefferson
City Correctional Center.

In 2017, in an interview with an investigator from the

Missouri Attorney General’s office, Mr. Stepp provided a
third version of the events he purportedly observed the
night of the shooting. In this 2017 statement, Mr. Stepp
stated that another unknown individual shot and killed
Ricco Rogers and Mr. Dunn was standing by him when
the shooting occurred. (See Resp. Exh. H). In addition
to claiming that his trial testimony was fabricated and
false, Mr. Stepp testified at the evidentiary hearing in
the instant case that this story he told last year to the
attorney general’s investigator was also false. In his
testimony, Mr. Stepp asserted that he hoped by giving
 10a

Appendix B

this false statement to obtain a reduction of his current

sentence of life without parole.

At 2:50 a.m. on May 19, 1990, less than three hours

after the shooting, Mr. Stepp gave a recorded interview
with law enforcement officers, the transcript of which was
marked as exhibit 14. Mr. Stepp said that Ricco Rogers,
Michael Davis, and DeMorris Stepp were on the porch at
5607 Labadie. Mr. Stepp saw Christopher Dunn hiding
around the corner next door. He then stated, “You know,
I thought my mind, you know, was playing games and I
looked dead in his face, and I guess he fired, he thought
I seen him, so he shot at me first ... It missed me by just
an inch.” Several shots were fired and the boys started
running, except that Ricco Rogers fell and died. When
Mr. Stepp was asked whether he saw Christopher Dunn
prior to the shots being fired, Mr. Stepp answered: “He
was shooting the gun.” (Exh. 14, pp. 2-6).

It is next to impossible to determine which version

of events related by Mr. Stepp is the most credible.
However, regardless of which of Mr. Stepp’s multiple
statements are true, it is beyond dispute that Petitioner
was convicted based upon the eyewitness testimony of a
person who at this point has told multiple contradictory
versions of what he claims to have observed on the night
of the shooting. As Judge Wolff observed in the Amrine
case, the only witnesses who implicated Petitioner in the
crime are proven liars. Amrine, 102 S.W.3d at 550 (Wolff,
J., concurring).

The other eyewitness, Michael Davis, was more

difficult to locate because he moved to California shortly
 11a

Appendix B

after he testified at Petitioner’s trial. (Exh. 2). Mr. Davis

was on the Labadie porch with Ricco Rogers and DeMorris
Stepp at the time of the shooting. He was interviewed
by law enforcement at 3:04 a.m. May 19, 1990, within
approximately three hours of the shooting. The statement
was recorded, and the transcript was marked as exhibit
20. He stated in the interview that moments after the
shooting he fell to the ground and played dead, and looked
up and was able to see the shooter. He recognized the
shooter as “Trap”, the nickname for Christopher Dunn,
by the unique sunglasses that Mr. Dunn regularly wore.
(Exh. 20, pp. 2-9).

At trial he testified that he did not see the shooter until

after the first shot was fired. Ricco Rogers fell and Mr.
Davis fell beside him to avoid getting shot. Right before
he fell he looked and saw the shooter, who he identified as
Christopher Dunn. (Tr. 174-182).

In 2015, Mr. Davis was located at the Solano County

Jail in Fairfield, California where he was incarcerated on
pending criminal charges. (Exh’s. 2, 17, 18). After being
interviewed, Mr. Davis also recanted under oath in a sworn
affidavit. (Id.). This affidavit, if believed, indicates that Mr.
Davis committed perjury when he identified Mr. Dunn
as the killer at the 1991 trial. (Id.). Mr. Davis indicated
that he could not see the shooter from his location. (Id.).
Mr. Davis indicated that Mr. Stepp convinced him to
implicate Mr. Dunn as the shooter because they believed
he was a member of the Crips gang in their neighborhood.
(Id.). Because Mr. Stepp and Mr. Davis were members
of the rival Bloods gang, they wanted Mr. Dunn out of
 12a

Appendix B

the neighborhood and believed implicating him in the

murder was an easy way to get that done. (Id.). This
account is somewhat corroborated by the testimony at
the evidentiary hearing from Mr. Stepp, who stated that
he convinced Mr. Davis to tell the police that Mr. Dunn
was the shooter.

A couple of weeks after the shooting, Mr. Davis

moved to California with his mother. (Id.). He was brought
back to Missouri by the prosecutors in 1991 to testify at
Petitioner’s trial. When interviewed by the police prior
to testifying, he states that he hesitated as to whether he
could identify who shot Ricco Rogers. (Id.) At that time,
he asserts he was pressured by the police to identify
Christopher Dunn as the killer. The police showed Mr.
Davis photos of Ricco Rogers’ corpse. The police also
arranged to have Ricco Rogers’ mother call him and urge
him to testify. (Id.) Mr. Davis states that as a result of this
pressure, Mr. Davis appeared in court and committed
perjury at trial by identifying Mr. Dunn as the shooter.
(Id.).

On November 17, 2015, Mr. Davis gave a tape recorded

statement to Petitioner’s investigator, Craig Speck, at
the Solano County Jail. (See Exh. 17). A copy of this tape
recorded statement was transcribed by a court reporter
and was attached to Petitioner’s reply in support of his
original petition as Exhibit 7.

At the time the evidentiary hearing was conducted

earlier this year, Mr. Davis was in California custody
and had been released from jail to an in-patient drug
 13a

Appendix B

treatment program. Counsel for Petitioner intended to

take Mr. Davis’ deposition on or before August 1, 2018,
and submit it to the Court. However, Mr. Davis absconded
from the halfway house and a warrant was issued for
his arrest. Because he has not yet been arrested on this
warrant, Petitioner requested that the Court consider
the testimony of Mr. Davis’ through his sworn affidavit
and through the transcribed taped statement that were
previously submitted to the Court.

The recantations of DeMorris Stepp and Michael

Davis are bolstered by the testimony of an independent
eyewitness, Eugene Wilson, who was present at the house
and witnessed the shooting death of Ricco Rogers. Mr.
Wilson is referred to as “Geno” in the police reports and
during the trial testimony of Mr. Stepp and Mr. Davis.
Mr. Wilson recently signed a sworn affidavit and testified
at the evidentiary hearing that he was present with Ricco
Rogers, DeMorris Stepp, and Michael Davis on Marvin
Tolliver’s porch at 5607 Labadie on the night of May 19,
1990. (Exh. 3). Several shots rang out that came from the
front of the house to the west. (Id.). Mr. Wilson states
that because it was dark outside, none of the young men
on the porch could see who was shooting at them. (Id.).
Everybody started to run except for Ricco Rogers and,
after the gunshots stopped, Mr. Wilson realized that Ricco
had been shot. (Id.).

Shortly after the shots were fired, one of the men

on the porch mentioned Christopher Dunn’s name and
indicated he might have been the shooter. (Id.). Mr. Wilson
stated that many of the younger kids in that neighborhood
 14a

Appendix B

did not like Christopher Dunn. Mr. Wilson also testified

that because he and Marvin Tolliver were friends with
Mr. Dunn, he does not believe that Petitioner would have
shot at them because of that friendship. (Id.). He is also
certain that because of where Mr. Stepp and Mr. Davis
were positioned when Ricco Rogers was shot, neither of
them could have possibly seen the shooter or positively
identified Mr. Dunn. (Id.). When he was told about some
of the prior statements that Mr. Stepp and Mr. Wilson
had given regarding the description of the shooter, Mr.
Wilson stated that these statements were false because it
was not possible that either of them could have seen the
shooter. (Id.).

The Court finds that Mr. Wilson’s testimony is

credible. He had no obvious motive to lie. Mr. Wilson
did not speak to the police that night because he could
not identify who did it and did not believe at that time
that he had any relevant information to aid the police in
catching the actual shooter. Mr. Wilson’s credibility is also
enhanced by the fact that he had lived with Ricco Rogers’
family since he was fourteen years old. As a result, he
was very close to Mr. Rogers’ mother and would have no
apparent motive to hinder the effort to hold accountable
the murderer of Ricco Rogers.

Mr. Wilson testified at the evidentiary hearing that

Mr. Rogers’ mother’s boyfriend had a motive to commit
these crimes because Mr. Rogers, Mr. Stepp, and Mr.
Davis had beaten him up three days earlier because he
was physically abusive toward Ricco Rogers’ mother. Mr.
Wilson also testified that Ricco Rogers’ younger brother
 15a

Appendix B

was shot approximately three months later. Mr. Rogers’

brother was also involved in the beating of his mother’s
boyfriend.

Petitioner’s claim of innocence is also corroborated

by other independent evidence. Petitioner submitted a
sworn affidavit from Catherine Jackson indicating that
she was friends with Mr. Dunn at the time of the shooting
in 1990 and that they often spoke on the phone. (Exh. 4).
She indicated that at approximately 11:00 p.m. on the
night of the shooting, she was engaged in a lengthy phone
conversation with Mr. Dunn that lasted between thirty and
sixty minutes that could have been ongoing at the time
that Mr. Rogers was shot. (Id.). During that conversation,
she remembered that Mr. Dunn was happy and acting
normal and did not seem upset or indicate that he had
been involved in any altercation or dispute with anyone.
When she was contacted about being a trial witness for
Mr. Dunn, Ms. Jackson’s mother did not want her to get
involved and refused to answer the door when the public
defender’s office came. (Id.). However, she did not testify
at the evidentiary hearing in this cause.

Another friend of Petitioner, Nicole Bailey, provided an

affidavit and testified at the recent hearing. She testified
that she spoke on the phone with Petitioner on the night
that Mr. Rogers was shot. (Exh. 6). Ms. Bailey remembers
this phone conversation because it occurred while she was
in the hospital, after having given birth to her first child
the night before. (Id.). Ms. Bailey also is certain that this
phone conversation occurred on the night that Mr. Rogers
was killed because she attempted to call Petitioner again
 16a

Appendix B

that same night and was informed by Petitioner’s sister

that the police had just come to Petitioner’s house looking
for him as a suspect in the killing of Mr. Rogers that had
occurred earlier that evening. (Id.).

Curtis Stewart testified at the recent evidentiary

hearing. Mr. Stewart testified that he was incarcerated
in a ten man pod at the St. Louis City workhouse with
DeMorris Stepp in 1991. Mr. Stewart overheard Mr. Stepp
making a telephone call, during which Mr. Stepp indicated
that he did not know who shot Ricco Rogers. When Mr.
Stewart and the other inmates in that pod learned that
Mr. Stepp was going to falsely accuse Petitioner of being
the shooter, this caused friction and fights and, as a result,
Mr. Stepp was removed to another area of the workhouse.

Fi na l ly, Petitioner ’s cla i m of i nnocence was

corroborated by several alibi witnesses whose testimony
was presented at Petitioner’s Rule 29.15 hearing.
Petitioner’s claim of innocence was also bolstered by
evidence adduced during the 29.15 hearing that the
victim’s brother, Dwayne Rogers, had made statements
that Petitioner was not the man who had killed his brother
and that he knew the identity of the actual shooter.

CONCLUSIONS OF LAW

Legal Standard for Habeas Corpus Relief

Habeas corpus is the last judicial inquiry into the

validity of a criminal conviction, and serves as “a bulwark
against convictions that violate fundamental fairness.”
 17a

Appendix B

Engel v. Dormire, 304 S.W.3d 120, 125 (Mo. banc 2010).

A writ of habeas corpus is a proper remedy “when a
person is restrained of his or her liberty in violation of the
constitution or laws of the state or federal government.”
State ex rel. Woodworth v. Denney, 396 S.W.3d 330, 337
(Mo. banc 2013). A habeas corpus Petitioner bears the
burden to show that he or she is entitled to relief. State ex
rel. Nixon v. Jaynes, 73 S.W.3d 623, 624 (Mo. banc 2002).
In order to avoid “duplicative and unending challenges
to the finality of judgments”, habeas corpus review is
limited to jurisdictional issues or “circumstances so rare
and exceptional that a manifest injustice results if relief
is not granted.” Clay v. Dormire, 37 S.W.3d 214, 217 (Mo.
banc 2000). A writ of habeas corpus can provide relief for
otherwise procedurally barred claims if the Petitioner
can show (1) a claim of actual innocence, (2) jurisdictional
defect, or (3) that a procedural defect was caused by
something external to the defense, and prejudice resulted
from the underlying error that worked to the Petitioner’s
actual and substantial disadvantage. State ex rel. Clemons
v. Larkin, 475 S.W.3d 60, 76 (Mo. banc 2015).

“Freestanding’’ and “Gateway” Claims of Actual

Innocence

A claim of “actual innocence” can either be a

“gateway’’ claim of innocence, or a “freestanding’’ claim
of innocence. A “gateway’’ claim of actual innocence is a
component of the “manifest injustice” analysis set forth
by the United States Supreme Court in Schlup v. Delo,
513 U.S. 298 (1995), and followed by the Missouri Supreme
Court in Clay v. Dormire, 37 S.W.3d 214 (Mo. banc 2000).
 18a

Appendix B

Under this analysis, a “manifest injustice” occurs which

would justify habeas corpus relief when a Petitioner
has demonstrated that “a constitutional violation has
probably resulted in the conviction of one who is actually
innocent” by showing that “it is more likely than not that
no reasonable juror could have convicted him in light of
new evidence of innocence.” Id. at 217. Under this analysis,
the proof of actual innocence is “a gateway through which
a habeas Petitioner must pass to have his otherwise barred
constitutional claim considered on the merits.” Id.

In addition, the Missouri Supreme Court has provided

for a “freestanding’’ claim of actual innocence in order “to
account for those rare situations ... in which a Petitioner sets
forth a compelling case of actual innocence independent of
any constitutional violation at trial.” State ex rel. Amrine
v. Roper, 102 S.W.3d 541, 547 (Mo. banc 2003). To make a
“freestanding’’ claim of actual innocence, a Petitioner must
“make a clear and convincing showing of actual innocence
that undermines confidence in the correctness of the
judgment.” Id. at 548. As such, a habeas corpus Petitioner
who proves innocence by a preponderance of the evidence
has established a “gateway” claim of actual innocence
and must also demonstrate that a constitutional violation
occurred at trial, while a Petitioner who proves innocence
by clear and convincing evidence has met the burden to
establish a “freestanding’’ claim of actual innocence and
does not need to demonstrate that a constitutional violation
has occurred in order to obtain relief.

A freestanding claim of actual innocence is only

cognizable for a petitioner who has been sentenced to
 19a

Appendix B

death, and is unavailable for cases in which the death

penalty has not been imposed. State ex rel. Lincoln v.
Cassady, 511 S.W.3d 11 (Mo. App. W.D. 2016). Thus,
Petitioner’s freestanding claim of actual innocence is
denied on that basis.

The Missouri Supreme Court in the case of State ex

rel. Robinson v Cassady, SC95892 (2018) granted habeas
relief in a non-capital habeas corpus case involving a claim
of freestanding innocence. The special master appointed
by the Missouri Supreme Court to take evidence issued
a critique of the Lincoln holding, opining that limiting
freestanding claims of actual innocence to capital
punishment cases is inconsistent with other prior decisions
from the Missouri Supreme Court, including Amrine.
The special master recommended granting habeas relief
both on petitioner’s freestanding claim of actual innocence
and his gateway claim of actual innocence, the latter of
which opened the door to evaluating a due process claim
involving perjured testimony. However, the Missouri
Supreme Court declined to rule on the freestanding claim
of innocence, electing to grant habeas relief through
the gateway claim of actual innocence. Thus, Robinson
provides no guidance as to the validity of the Lincoln
holding.

More recently, this year the Missouri Supreme

Court in the case of State ex rel. Nash v. Payne,
SC97903 (7-10-2020) granted habeas relief in another
non-capital habeas case involving a clam of freestanding
innocence. The special master appointed by the Missouri
Supreme Court to take evidence likewise disagreed
 20a

Appendix B

with the Lincoln holding limiting such claims to capital

punishment cases. The special master recommended
granting habeas relief on petitioner’s freestanding claim
of actual innocence as well as his gateway claim of actual
innocence. Again the Supreme Court avoided addressing
whether a freestanding claim of innocence is available
for a non-capital case, holding instead that the petitioner
established his gateway claim of actual innocence, which
in turn opened the gateway for considering and sustaining
petitioner’s multiple constitutional due process claims.

This Court is constrained to follow controlling

precedent as pronounced in the only case directly
deciding the issue of whether a freestanding claim of
innocence is available in non-capital cases. Unless Lincoln
is overruled or another division of our appellate court
decides differently, controlling precedent would appear
to limit freestanding claims of actual innocence to capital
punishment cases. As such, Petitioner’s freestanding claim
of innocence in the instant case is denied without further
analysis.

Next, this Court considers Petitioner’s gateway claim

of actual innocence. To establish a gateway claim of actual
innocence, petitioner must show that “a constitutional
violation has probably resulted in the conviction of one
who is actually innocent.” Clay v. Dormire, 37 S.W.3d 214,
217 (Mo. banc 2000) (quoting Schlup v. Delo, 513 U.S. 298,
327 (1995). “A petitioner’s burden at the gateway stage is
to demonstrate that more likely than not, in light of the
new evidence, no reasonable juror would find him guilty
beyond a reasonable doubt—or, to remove the double
 21a

Appendix B

negative, that more likely than not any reasonable juror

would have reasonable doubt.” House v. Bell, 547 U.S.
518, 538 (2006); see also State ex rel. Nixon v. Jaynes,
63 S.W.3d 210, 214 (Mo. banc 2001) (“‘[A]ctual innocence’
means that the petitioner must show that it is more likely
than not that ‘no reasonable juror would have found the
defendant guilty’ beyond a reasonable doubt.”) (quoting
Schlup, 513 U.S. at 328-29).

A credible gateway claim “requires ‘new reliable

evidence—whether it be exculpatory scientific evidence,
trustworthy eyewitness accounts, or critical physical
evidence—that was not presented at trial,”’ but “the
habeas court’s analysis is not limited to such evidence.”
House, 547 U.S. at 538 (quoting Schlup, 513 U.S. at
324). “Schlup makes plain that the habeas court must
consider all the evidence, old and new, incriminating
and exculpatory, without regard to whether it would
necessarily be admitted under rules of admissibility that
would govern at trial.” Id. at 538 (quoting Schlup, 513 U.S.
at 327-328) (internal quotation marks omitted). “Justice
requires that this Court consider all available evidence
uncovered following [the petitioner’s] trial that may impact
his entitlement to habeas relief.” Engel, 3 04 S.W.3d at 126.

“The Schlup standard does not require absolute

certainty about the petitioner’s guilt or innocence.” House,
547 U.S. at 538. “Reasonable doubt ... marks the legal
boundary between guilt and innocence.” Jaynes, 63 S.W.3d
at 214 (quoting Schlup, 513 U.S. at 315) (internal quotation
marks omitted ). The standard is “probabilistic” and
considers “what reasonable, properly instructed jurors
 22a

Appendix B

would do.” House, 547 U.S. at 538. “The word ‘reasonable’

in that formulation is not without meaning.” Schlup, 513
U.S. at 329. “It must be presumed that a reasonable juror
would consider fairly all of the evidence presented.” Id.

As was noted earlier, in the instant case new evidence

has emerged, in addition to the recantations, which make
it likely that reasonable, properly instructed jurors would
find Petitioner not guilty. House, 547 U.S. at 538. Eugene
Wilson, an independent eyewitness who has no reason
to lie and was the only eyewitness in the case who is not
currently incarcerated for other crimes, provided credible
testimony that none of the witnesses at the scene of the
shooting could have identified the assailant. Mr. Wilson’s
testimony provides corroborating evidence to buttress the
recantations of Mr. Stepp and Mr. Davis. Coupled with the
evidence in the record that Petitioner had an alibi, this
Court does not believe that any jury would now convict
Christopher Dunn under these facts. Instead, this Court
concludes that, based on all the evidence considered under
the dictates of Schlup, it is more likely than not that any
reasonable juror would have reasonable doubt. As the first
recantation did not occur until 2005, there is also cause
and prejudice to allow review of Petitioner’s due process
claims. See State ex rel. Griffin v Denney, 347 S.W.3d 73,
77 (Mo. banc 2011)

Due Process Claims

Because Petitioner has met the gateway innocence

test, the Court may examine Petitioner’s otherwise barred
due process claims. Under Claim 2, Petitioner claims that
 23a

Appendix B

the presentation of the perjured testimony of Mr. Stepp

and Mr. Davis violated his right to due process under
Napue and Giglio v United States, 405 U.S. 150 (1971).
Under Claim 3, Petitioner claims that his due process
rights were violated due to the State’s suppression of
material exculpatory evidence involving DeMorris Stepp’s
plea agreement where he was guaranteed probation in
exchange for his testimony.

As to Claim 2 alleging presentation of perjured

testimony, no evidence was presented that either the police
or the prosecution had actual knowledge that Mr. Stepp
or Mr. Davis lied (if they indeed lied) during their trial
testimony. Thus, Claim 2 is denied.

In Claim 3, Petitioner asserts that his due process

rights were violated by the state’s failure to disclose
exculpatory evidence involving DeMorris Stepp’s alleged
plea agreement where he was guaranteed probation
in exchange for his favorable testimony identifying
Petitioner as the murderer of Ricco Rogers. In Brady v.
Maryland, 373 U.S. 83 (1963), the Supreme Court held
that “the suppression by the prosecution of evidence
favorable to an accused upon request violates due process
where the evidence is material either to guilt or to
punishment, irrespective of the good faith or bad faith of
the prosecution.” Id. at 87. Later, in Strickler v. Greene,
527 U.S. 263 (1999), the court more precisely articulated
the three essential elements for establishing a Brady
claim: “[T]he evidence at issue must be favorable to the
accused, either because it is exculpatory, or because it is
impeaching; that evidence must have been suppressed by
 24a

Appendix B

the state, either willfully or inadvertently; and prejudice

must have ensued.” Id. at 281-282. It is also well settled
that the Brady rule encompasses evidence “known only to
police investigators and not the prosecutor ... In order to
comply with Brady, therefore, ‘the individual prosecutor
has a duty to learn of any favorable evidence known to
others acting on the government’s behalf in this case,
including the police.”’ Id. at 280-281 (quoting Kyles v.
Whitley, 514 U.S. 419, 437 (1995)).

Like the due process requirements of the Brady line

of cases, Missouri Rule 25.03 requires the prosecution,
upon written request of defendant’s counsel, to disclose
exculpatory evidence to the accused prior to trial. This
rule “imposes an affirmative requirement of diligence and
good faith on the State to locate records not only in its own
possession or control but in the control of other government
personnel.” Merriweather v. State, 294 S.W.3d 52, 56
(Mo. banc 2009). Although discovery violations under Rule
25.03 are trial errors that normally must be raised on
direct appeal, the Supreme Court held in Merriweather
that such claims may be raised in a subsequent post-
conviction action in the interest of fundamental fairness.
Id. at 55.

Petitioner claims that the State and DeMorris Stepp

had an agreement or understanding that DeMorris
Stepp would receive probation on his pending charges
if he testified at Petitioner’s trial, and that the State
failed to disclose the fact of this alleged agreement or
understanding to the defense. At the time of Petitioner’s
trial, Mr. Stepp had a pending felony case arising from
offenses that occurred before Petitioner’s trial. (Exh. 5).
 25a

Appendix B

At Petitioner’s trial, Mr. Stepp testified that he had

entered into a plea agreement under which the State
would recommend that he be sentenced to fifteen years
in the Department of Corrections in exchange for his
testimony in Petitioner’s case. (Tr. 146). In contrast to his
trial testimony, Mr. Stepp recently testified at the May 30,
2018 hearing that he had an understanding that he would
definitely receive probation on his pending charges if he
testified at Petitioner’s trial. The Court finds the testimony
of Mr. Stepp as to the existence of such an agreement or
understanding to be not credible.

At the underlying criminal trial, Mr. Stepp testified

to the jury that he had unrelated charges pending against
him. He testified that he had reached a plea agreement
where the state dropped armed criminal action charges to
give Defendant a chance at probation, and that the state
was recommending that he receive fifteen years in prison
(Tr. 147, 155-156). Later that same day, out of the presence
of the jury, Mr. Stepp pleaded guilty before Judge Michael
Calvin, who was also the judge presiding over Petitioner’s
trial. The State was represented by Steve Ohmer, who was
also the prosecutor in Petitioner’s trial, and Mr. Stepp was
represented by counsel Elizabeth Brown. The prosecutor
announced that there was a plea agreement whereby the
State would recommend concurrent sentences of fifteen
years on the robbery charge, one year on the tampering
charge, and one year on the weapons charge, all to run
concurrently (Ex. 19, p. 2). The armed criminal action
charge would be dismissed pursuant to this plea bargain.
Judge Calvin accepted the plea, ordered a presentence
investigation and set sentencing for six weeks later.
 26a

Appendix B

At the sentencing hearing, the State was represented

by Jane Darst and Mr. Stepp was again represented
by Elizabeth Brown. Judge Calvin did not initially ask
for recommendation or argument from either attorney,
and instead immediately afforded allocution. Ms Brown
requested probation for Mr. Stepp. Judge Calvin then
conducted a lengthy hearing in which he inquired of other
family members of Mr. Stepp who were present in the
courtroom, spoke directly with Mr. Stepp, and eventually
chose to suspend imposition of sentence on the charges,
granting Mr. Stepp probation for a term of three years.
The prosecutor remained silent during the sentencing
hearing.

The Court concludes that no agreement for probation

existed at the time of Mr. Stepp’s testimony at Petitioner’s
trial for Mr. Stepp to receive probation. As noted
earlier, for any such agreement to be effective, the judge
sentencing Mr. Stepp would have had a need to know about
it in order to grant probation as promised. This means that
Judge Calvin would have been a participant in a scheme,
along with the prosecuting attorney, to hide from the jury
hearing the Christopher Dunn case an agreement that
Mr. Stepp would receive probation rather than fifteen
years in prison.

The transcript of the plea and sentencing hearing

makes plain that this did not occur. Instead, Judge Calvin
at Mr. Stepp’s sentencing hearing made an independent
determination that DeMorris Stepp should be granted
probation rather than being sent to prison for fifteen
years. Judge Calvin ultimately decided on probation, not
 27a

Appendix B

because the parties had agreed to it, but because Judge

Calvin deemed it appropriate.

To the extent that Mr. Stepp harbored a hope that

he would be granted probation, this was disclosed to the
jury in his testimony. He testified in Petitioner’s jury trial
as follows:

Q. And you’re currently charged with Robbery

in the First Degree?

A. Right.

Q. And Armed Criminal Action?

A. Right.

Q. Tampering in the First Degree and CCW;

is that right?

A. Unlawful Use of a Weapon.

Q. Unlawful Use of a Weapon, Carrying a

Concealed Weapon; isn’t that right?

A. Right.

Q. And in exchange for your testimony Mr.

Ohmer has agreed to drop the Armed Criminal
Action; is that right?

A. Right.
 28a

Appendix B

Q. What does that mean to you?

[objections argued and overruled]

Q. What does that mean to you?

A. That means that I would get a chance at

probation.

Q. And that’s important to you; is that right?

A. Yes, very important to me.

(Tr. at 155-156).

As no agreement or understanding existed that Mr.

Stepp would receive probation as a result of his testimony,
no Brady violation occurred. Accordingly habeas relief is
denied under Claim 3.

CONCLUSION

For the above reasons, Petitioner’s Amended Petition

for Writ of Habeas Corpus is denied.

IT IS SO ORDERED.

September 23, 2020

/s/ William E. Hickle

William E. Hickle, Circuit Judge
 29a

Appendix C
Appendix C — memorandum and order
of the united states district court
for the eastern district of missouri,
eastern division, filed march 27, 2000
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

CHRISTOPHER DUNN,

Petitioner,

vs.

DAVE DORMIRE,

Respondent.

Case No. 4:97CV0331 (MLM)

MEMORANDUM AND ORDER

This matter is before the Court on the petition

for a writ of habeas corpus filed by Christopher Dunn
(“Petitioner”) pursuant to 28 U.S.C. § 2254. Petitioner is
presently incarcerated at the Jefferson City Correctional
Center in Jefferson City, Missouri. Dave Dormire
(“Respondent”) is the Superintendent of the Jefferson
City Correctional Center. Thus, he is the proper party
respondent. The parties have consented to the jurisdiction
of the undersigned United States Magistrate Judge
pursuant to 28 U.S.C. § 636(c). [11]
 30a

Appendix C

I.
PROCEDURAL HISTORY

Petitioner is incarcerated at the Jefferson City

Correctional Center pursuant to the judgment and
sentence of the Circuit Court of the City of St. Louis.
Petitioner was convicted on July 18, 1991, following a
trial by jury, of murder in the first degree, two counts
of assault in the first degree and three counts of armed
criminal action. The trial court sentenced Petitioner to a
term of life without possibility of parole plus ninety years.

Petitioner filed a motion for post-conviction relief

pursuant to Missouri Supreme Court Rule 29.15. His
motion was denied on July 8, 1993.

Petitioner appealed from the trial court’s judgment

and from the motion court’s denial of his Rule 29.15 motion
for post-conviction relief. Pursuant to State v. Parker, 836
S.W.2d 930, 939 (Mo. banc 1992), the Missouri Court of
Appeals remanded Petitioner’s case to the trial court for
an evidentiary hearing on the Batson1 motion to determine
whether the prosecutor exercised his peremptory strikes
in a racially discriminatory manner. State v. Dunn, 889
S.W.2d 65, 69 (Mo.App. 1994). The Missouri Court of
Appeals denied all other points Petitioner raised on appeal
from the trial court and affirmed the judgment of the
post-conviction motion court. Id.

1.  Batson v. Kentucky, 476 U.S. 79 (1986).

 31a

Appendix C

On March 9, 1995, the trial court conducted an

evidentiary hearing and subsequently denied the Batson
motion. The parties filed supplemental briefs with the
Missouri Court of Appeals addressing the trial court’s
rejection of the Batson claim. The Missouri Court of
Appeals affirmed the judgment of the trial court on
September 12, 1995.

Petitioner next filed the instant petition for habeas

corpus relief, which is 141 pages in length. Although
confusing in its structure, it appears Petitioner asserts
the following numerous grounds for relief in his petition,
several of which are duplicative:

1. Petitioner’s conviction was obtained by a violation

of the privilege against self-incrimination in that
Petitioner was placed in a line-up against his will
[See Petition, pp. 5, 28];

2. Petitioner’s conviction was obtained by the use

of evidence obtained pursuant to an unlawful
unconstitutional search and seizure by the St.
Louis police department [See Petition, pp. 5, 29];

3. Trial counsel provided ineffective assistance

of counsel by failing to depose all of the state
witnesses and Demorris Stepp and Michael
Davis, for failing to withdraw from the case
after Petitioner expressed his dissatisfaction
with counsel’s representation, for failing to
object to the testimony of Michael Davis, for
giving instruction number 11 over Petitioner’s
 32a

Appendix C

objection in that the evidence did not support the

submission of an instruction on the first degree
assault of Michael Davis, and counsel erred in
giving instruction number 12 over Petitioner’s
objection in that the evidence did not support the
submission of an instruction of armed criminal
action [See Petition, pp. 6, 131];

4. The trial court erred in overruling Petitioner’s

motion to quash the jury panel, in allowing the
state’s peremptory strike of venireperson Ronald
Lee Jackson, who is African­ American, and
in failing to require the state to provide race­-
neutral reasons for striking Jackson, all of which
were a violation of Batson [See Petition, pp. 6, 51];

5. The trial court erred in permitting the state to

“misdefine” reasonable doubt during voir dire.
[See Petition, pp. 6, 52];

6. The trial court erred in permitting the prosecutor

to comment to the jury on ten occasions that
the state’s evidence was uncontradicted as
this constituted an impermissible comment on
Petitioner’s failure to testify [See Petition, pp. 6,
53];

7. The trial court erred when it overruled Petitioner’s

objection to the submission of instruction No. 4,
the reasonable doubt instruction, because the
instruction is unconstitutional in that it requires
a burden of proof for conviction less than is
 33a

Appendix C

required by the due process clause [See Petition,

pp. 6, 54];

8. The trial court erred in overruling Petitioner’s

motion to quash the indictment because the grand
jury and petit jury selection were not drawn
from a fair cross-section of the community [See
Petition, pp. 6, 55];

9. The post-conviction motion court erred in failing

to inquire of post-conviction counsel why no
amended motion was filed by counsel and whether
all grounds known to Petitioner were raised [See
Petition, pp. 6, 56];

10. The post-conviction motion court erred in failing

to issue findings of fact and conclusions of law on
all issues as required by Missouri Supreme Court
Rule 29.15(i) [See Petition, pp. 6, 57];

11. The post-conviction motion court erred when it

adopted verbatim the state’s proposed findings
of fact and conclusions of law [See Petition, pp. 6,
58];

12. Trial counsel was ineffective for failing to

investigate and call as alibi witnesses Arnetta
Dunn and Martha Dunn; failed to investigate and
call Nicole Williams as a witness, who would have
testified that Petitioner telephoned her at the
hospital at or near the time of the alleged offense;
and failed to investigate and call Dwayne Rogers
 34a

Appendix C

(the deceased victim’s brother) as a witness, who

would have testified that he was at the scene of
the shooting and another person, not Petitioner,
was the shooter [See Petition, pp. 6, 59];

13. Trial counsel was ineffective for her failure to

properly cross-examine the state’s witness who
offered inconsistent statements to the ones he
made prior to trial [See Petition, pp. 6, 59];

14. Trial counsel was ineffective for failing to

object to or preserve in a motion for new trial,
the state’s failure to establish probable cause
to arrest Petitioner; failure to show exigency
in conjunction with the warrantless entry to
Petitioner’s mother’s residence; and the state’s
failure to prove that consent was freely and
voluntarily given to the officers conducting entry,
arrest and search [See Petition, pp. 6, 8];

15. Trial counsel was ineffective for failing to file a

motion for discovery pursuant to Missouri Rule
25.03, thereby denying Petitioner the right to
prepare an adequate defense [See Petition, pp.
6, 9];

16. Trial counsel was ineffective for failing to object

to, and preserve for appeal, the state’s failure to
prove deliberation as an essential element of first
degree murder [See Petition, pp. 6, 10];
 35a

Appendix C

17. Trial counsel was ineffective for failing to put

on any defense; this precluded Petitioner from
calling Dewayne Roger, the victim’s brother, who
was on the scene and would have testified that
Petitioner was not the man that killed his brother
[See Petition, pp. 6, 11];

18. “A doctrine establishing so fundamental a

substantive constitutional standard, as proof
beyond a reasonable doubt, of all essential
elements must also require that the facts of
evidence be present.” [See Petition, pp. 6, 12];

19. Trial court erred in overruling defense counsel’s

motion to quash the indictment due to error in
the jury process [See Petition, pp. 6, 13];

20. Trial court erred in overruling Petitioner’s

objection to the submission of Instruction No. 4,
because the phrase “firmly convinced” required a
lesser proof than that required by the constitution
[See Petition, pp. 6, 14];

21. T r ia l cou r t er red i n over r u l i ng defense

counsel’s motion to suppress identification as the
identification violated Petitioner’s constitutional
rights [See Petition, pp. 6, 15];

22. Trial court erred in overruling defense counsel’s

motion to suppress evidence, said evidence
was obtained pursuant to an unlawful search
and seizure in that it was conducted without a
 36a

Appendix C

warrant, without probable cause and was not

within the scope of any exception to the warrant
requirements because it exceeded the scope of
any exception to the warrant requirement [See
Petition, pp. 6, 16];

23. Petitioner was denied due process and equal

protection due to trial counsel’s representation,
which presented a conflict of interest, due to the
fact that the public defender who represented
Petitioner at trial was an agent of the State of
Missouri, as was the prosecuting attorney and
Petitioner was charged by the State of Missouri
[See Petition, pp. 6, 17];

24. Trial counsel was ineffective for failing to file a

motion for appointment of a psychiatrist under
the offense charged of first degree murder [See
Petition, pp. 6, 18];

25. Trial counsel was ineffective for not putting

on Petitioner’s alibi defense, which consisted
of testimony from Karry Dunn, Angela Dunn,
Arnetta Dunn, Martha Dunn, Wilford Rickman,
Cathy Jackson and Crystal Johnson, all of whom
would have testified that Petitioner was at home
at the time of the shooting; trial counsel was
ineffective for not calling Nicole Williams whose
testimony would have been that she was on the
phone talking to Petitioner at the time of the
shooting See pp. 6, 19];
 37a

Appendix C

26. Trial counsel was ineffective for failing to

properly cross­ examine the state’s witness who
offered inconsistent statements [See Petition, pp.
6, 20];

27. Trial counsel was ineffective for her failure to

bring to light, under cross-examination, the deal
reached between the state and the state’s witness,
Demorris Stepp, who had been given fifteen years
on probation in return for his testimony [See
Petition, pp. 6, 21];

28. Trial counsel was ineffective for her failure to

subpoena telephone records of the Deaconess
Hospital for May 18, at 11:45 to 12:05, which
would have been consistent with the testimony
of Nicole Williams, who was in the hospital when
Petitioner made this call after hours, and had
to be transferred through switch boards and
secretaries to complete this call [See Petition, pp.
6, 22];

29. Trial counsel was ineffective when she failed to

advise the jury that, prior to being killed, the
victim had shot a man on his own front porch, and
that the state’s witnesses were connected with the
same gang as the victim and were present when
the victim shot this man on his front porch [See
Petition, pp. 6, 23];
 38a

Appendix C

30. Trial counsel was ineffective for failing to

object to the judge not issuing an instruction on
premeditated murder to the jury [See Petition,
pp. 6, 24];

31. Trial counsel was ineffective for not properly

cross-examining Michael Davis; the witness
made several inconsistent statements which
would have caused the jury to question his
credibility [See Petition, pp. 6, 25];

32. Trial counsel was ineffective for failing to utilize

information known to her that was beneficial to
Petitioner and would have altered the outcome
of the trial and may have been instrumental in a
not guilty verdict [See Petition, pp. 6, 26];

33. Trial counsel was ineffective in her role for failing

to contact thirteen alibi witnesses in Petitioner’s
defense; she did not investigate potential alibi
witnesses [See Petition pp. 6, 27].

Pursuant to Court order, Respondent filed a response

to Petitioner’s §  2254 petition. Due to the confusing
structure of Petitioner’s petition, Respondent only
responded to Petitioner’s first twelve grounds for relief.
Respondent filed numerous exhibits with its response.
Petitioner then filed a reply to Respondent’s response,
consisting of 96 pages. 2 He also submitted twenty-eight

2.  In Petitioner’s 96-page reply brief, he identifies twenty-three

grounds for relief. The first twelve are the same as those identified
 39a

Appendix C

exhibits to the Court with his reply. The Court has

reviewed the petition, the response thereto, Petitioner’s
reply brief, and all the exhibits filed therewith, and
concludes that Petitioner’s request for habeas corpus relief
should be denied.

II.
STANDARD OF REVIEW

On April 24, 1996, the Antiterrorism and Effective

Death Penalty Act of 1996 (“the AEDPA”) was signed into
law by the President of the United States. The AEDPA
applies to all § 2254 petitions filed after its effective date.
Lindh v. Murphy, --- U.S.---, 117 S.Ct. 2059, 2062-2067
(1997). Petitioner’s §  2254 petition was received by the
Court in November 1996 and filed in December 1996.
Therefore, the Act applies to the instant petition for a
writ of habeas corpus.

Title I of the AEDPA significantly amends habeas

corpus law. The amended version sets forth a more
stringent standard for issuance of a writ of habeas corpus.
The text of section 2254(d) firmly establishes the state
court decision as the starting point in habeas review.
Matteo v. Superintendent. SCI Albion, 171 F.3d 877, 885

by Respondent. The remaining eleven are subsumed within this

Court’s identification of Grounds Twelve through Thirty-Three.
Out of an abundance of caution, and in an effort to ensure that
Petitioner obtains thorough review of his habeas petition, the Court
elects to proceed with its analysis of Petitioner’s request for habeas
relief based upon the thirty-three grounds the Court believes to be
identified by Petitioner in his § 2254 petition.
 40a

Appendix C

(3rd Cir. 1999). Section 2254(d) sets forth two conditions

(subsections (d)(1) and (d)(2)), at least one of which must
be met before habeas relief may be granted. Id. at 887.

Section 2254(d)(1) provides that an application for a

writ of habeas corpus shall not be granted with respect
to any claim that was adjudicated on the merits in State
court proceedings unless that adjudication “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.”
28 U.S.C. § 2254(d)(1). See James v. Bowersox, 187 F.3d
866, 869 (8th Cir. 1999). This first condition entails a
two-step analysis. First, the federal habeas court must
determine whether the state court decision was “contrary
to” Supreme Court precedent that governs the petitioner’s
claim. Relief is appropriate only if the petitioner shows that
Supreme Court precedent requires an outcome contrary
to that reached by the relevant state court. Matteo, 171
F.3d at 885. In the absence of such a showing, the federal
habeas court must, second, ask whether the state court
decision represents an “unreasonable application of”
Supreme Court precedent. Under this standard, the
federal habeas court should not grant the petition unless
the state court decision, evaluated objectively and on the
merits, resulted in an outcome that cannot reasonably be
justified under existing Supreme Court precedent. See
James, 187 F.3d at 869 (quoting Long v. Humphrey, 1999
WL 494096, at *2-3 (8th Cir. July 14, 1999)); Matteo, 171
F.3d at 890; Ford v. Ahitow, 104 F.3d 926, 936 (7th Cir.
1997).
 41a

Appendix C

Section § 2254(d)(2) provides that an application for

a writ of habeas corpus 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
“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.” Prior to the passage of
the AEDPA, there was a presumption in habeas corpus
proceedings that factual determinations by a state court
were correct. Blair v. Armentrout, 916 F.2d 1310, 1317-18
(8th Cir. 1990), cert. denied 502 U.S. 825 (1991). With the
enactment of the AEDPA, the presumption of correctness
still applies but the quantum of proof necessary to rebut
the presumption has been increased (to the “clear and
convincing” standard), making it more difficult for the
petitioner to do so. Warren v. Smith, 161 F.3d 358, 360-61
(6th Cir. 1998), cert. denied, --U.S.--, 119 S.Ct. 2403 (1999).

III.
STATEMENT OF FACTS

For purposes of placing Petitioner’s claims in their

proper context, the Court offers the following statement of
the facts, adopted entirely from the opinion of the Missouri
Court of Appeals:

The sufficiency of the evidence is not in

dispute. The evidence, viewed in the light most
favorable to the verdict, reveals that shortly
after midnight on May 19, 1990, Dunn ran by a
house in the 5600 block of Labadie in the City
of St. Louis and shot a firearm at three fifteen
 42a

Appendix C

year old boys who were on the front porch. The

shots hit one of the boys who was taken to the
hospital where he died from a gunshot wound
at 2:21 a.m. the same day. The other two boys
knew Dunn and identified him.

See Respondent’s Exhibit 11, pg. 3.

IV.
ANALYSIS

A. GROUND ONE, GROUND TWENTY-ONE

For his first ground for relief, Petitioner asserts that

his conviction was obtained by a violation of the privilege
against self-incrimination in that Petitioner was placed in
a line-up against his will. He elaborates:

Petitioner was placed within a court line up

which he did not wish to become a participant. As
petitioner asked the officer if it is not one of his
rights if he wished not to, while the said officer
stated this is only for the department’s file,
petitioner was also placed in a line up with two
others who had requested a line up participation
that came from the same neighborhood of
petitioner and who knew the witnesses and
the witnesses knew them. The Supreme Court
found that the police used the line up procedure
which were compelling example of unfairness,
even after petitioner stated he wished to have
an attorney, for counsel is needed because a line
 43a

Appendix C

up offers an opportunity for the prosecution to

take advantage of the accused.

See Petition, pg. 28.

In Ground Twenty-One, Petitioner asserts a variation

of this argument. He argues that the trial court erred
in overruling defense counsel’s motion to suppress
identification as the identification violated Petitioner’s
constitutional rights [See Petition, pp. 6, 15];

Petitioner did not raise these grounds in his motion for

new trial. Although he challenged the line-up in his motion
for new trial, it was based on the allegedly suggestive
circumstances of the lineup and not on the grounds that
he was placed in a lineup against his will. Furthermore,
Petitioner failed to raise any claim concerning the lineup
in the direct appeal of his conviction.

A prerequisite for filing a federal habeas petition

requires that the petitioner must have first fairly
presented the federal constitutional dimensions of his
federal habeas corpus claim to the state courts. Smittie
v. Lockhart, 843 F.2d 295, 296 (8th Cir. 1988) (quoting
Laws v. Armontrout, 834 F.2d 1401, 1412 (8th Cir. 1987)).
In the event that a petitioner has failed to present the
federal issues to the state courts first, he has procedurally
defaulted his claims and cannot subsequently bring them
in a federal habeas petition. Id.

In the present action, the Petitioner did not present

the claims he raises in the instant federal petition to the
 44a

Appendix C

state courts. Thus, it would appear that he is procedurally

barred from bringing his claims in the instant federal
habeas petition.

Petitioner can overcome this procedural default in

either of two ways: (1) by showing “cause” sufficient to
excuse his default and “prejudice” resulting from that
default, Wainwright v. Sykes, 433 U.S. 72, 87 (1977); or
(2) irrespective of cause and prejudice, by showing that
the error complained of resulted in petitioner’s conviction
despite his probable innocence. Murray v. Carrier, 477
U.S. 478, 485-86 (1986). A review of Petitioner’s 96-page
reply brief reveals that Petitioner has failed to articulate
a reason sufficient to justify his failure to raise Grounds
One and Twenty-One on direct appeal. Thus, he has failed
to establish the requisite cause and prejudice necessary
to overcome his procedural default.

Despite Petitioner’s failure to show cause for his

default, the Court can reach the merits of his claims if he
can show that he is probably actually innocent. Wyldes v.
Hundley, 69 F.3d 247, 254 (8th Cir. 1995), cert. denied, ---
U.S.---, 116 S.Ct. 1578 (1996). Petitioner asks the Court to
consider his defaulted claims under this exception.

Under Schlup v. Delo, ---U.S.---, 115 S.Ct. 851 (1995), a

petitioner who raises a gateway claim of actual innocence
must satisfy a two-part test. First, the petitioner’s
allegations of constitutional error must be supported
“with new reliable evidence ... that was not presented at
trial.” Id. at 865. Second, the petitioner must establish
“that it is more likely than not that no reasonable juror
 45a

Appendix C

would have convicted him in the light of the new evidence.”

Id., at 867. See also Wyldes, 69 F.3d at 254. The actual
innocence exception requires “review of procedurally
barred, abusive, or successive claims only in the narrowest
type of case – when a fundamental miscarriage of justice
would otherwise result.” Ruiz v. Norris, 71 F.3d 1404, 1409
(8th Cir. 1995) (citing Schlup, --- U.S. at ---, 115 S.Ct. at
864)). Petitioner cannot prevail on the actual innocence
exception. Although Petitioner implores this Court to
consider his defaulted claims under the actual innocence
exception, he fails to provide this Court “with new reliable
evidence ... that was not presented at trial.” Moreover, he
has failed to establish “that it is more likely than not that
no reasonable juror would have convicted him in the light
of the new evidence.” Schlup, supra.

As Petitioner has failed to overcome his procedural

default, the Court finds that it is procedurally barred from
reviewing Petitioner’s first and twenty-first grounds for
habeas relief.

B. GROUND TWO, GROUND TWENTY-TWO

For his second ground for relief, Petitioner claims

that his conviction was obtained by the use of evidence
obtained pursuant to an unlawful unconstitutional search
and seizure by the St. Louis police department:

The said article was obtained by the St. Louis

police department the night of the crime of May
18, 1990 into the 19th day of May 2:00 a.m. when
the police officer came to petitioner’s mother’s
 46a

Appendix C

home stating they had a search and arrest

warrant for petitioner while petitioner’s mother
asked them to produce the search warrant
none was given to her. While inside the home
the officer retrieved a picture of petitioner
and showed it to the state witnesses while still
in front of petitioner’s mother’s home. When
petitioner asked the homicide commanding
officer Brown in the presence about it he simply
said he was only sorry for the action of his
officers. Nor did petitioner’s mother consent
that night for the unwanted and unwarranted
entry.

See Petition, pg. 29.

In Ground Twenty-Two, Petitioner raises a variation

of this argument. He claims the “trial court erred in
overruling defense counsel’s motion to suppress evidence,
as the evidence was obtained pursuant to an unlawful
search and seizure in that it was conducted without a
warrant, without probable cause and was not within
the scope of any exception to the warrant requirements
because it exceeded the scope of any exception to the
warrant requirement.” See Petition, pg.16.

Petitioner did not raise this claim on direct appeal.

Therefore, he has procedurally defaulted this claim for
purpose of federal habeas corpus review. Petitioner
has failed to establish cause for failing to present this
issue to the State courts first. Moreover, for the reasons
discussed in the previous subsection, he cannot avail
 47a

Appendix C

himself of the actual innocence exception. Therefore, the

Court is procedurally barred from reviewing this claim
and concludes that Petitioner’s second and twenty-second
grounds for relief will be denied. See Smittie v. Lockhart,
843 F.2d 295, 296 (8th Cir. 1988).

C. GROUNDS THREE, THIRTEEN, FOURTEEN,

FIFTEEN, SIXTEEN, TWENTY-FOUR, TWENTY-
SIX , T W ENT Y- SEVEN, T W ENT Y-EIGHT,
T W ENT Y-NINE , THIRT Y, THIRT Y- ONE ,
THIRTY-TWO

For his third ground for relief, Petitioner asserts

that he received ineffective assistance of trial counsel
because: (1) counsel failed to depose several witnesses;
(2) counsel failed to withdraw from the case after
Petitioner expressed his dissatisfaction with counsel’s
representation; (3) counsel failed to object to the testimony
of Michael Davis; (4) counsel offered Instruction No. 11,
over Petitioner’s objection, when the evidence did not
support the submission of an instruction on the first
degree assault of Michael Davis; and (4) counsel offered
Instruction No. 12, over Petitioner’s objection, when the
evidence did not support the submission of an instruction
for armed criminal action. Petitioner did not present any of
these claims of ineffective assistance of trial counsel to the
post-conviction motion court. Nor did Petitioner attempt
to raise these issues on the appeal from the denial of his
Rule 29.15 motion.

In Grounds Thirteen and Twenty-Six, Petitioner

alleges the same claim for relief. He asserts that trial
 48a

Appendix C

counsel was ineffective for failing to properly cross-

examine the state’s witness, Demorris Stepp, who offered
inconsistent statements to the ones he made prior to
trial. Petitioner raised this issue in his motion for post-
conviction relief See Petitioner’s Exhibit 22.B., pp. 21.
However, Petitioner did not raise this ground on the
appeal from the denial of his Rule 29.15 motion. Although
he did assert ineffective assistance of trial counsel as
one of his appellate grounds, that claim charged counsel
with ineffectiveness for failing to investigate and call as
alibi witnesses Arnetta Dunn and Martha Dunn, failing
to investigate and call as a witness Nicole Williams, and
failing to investigate and call as a witness Dwayne Rogers.
There was no discussion by Petitioner about counsel’s
failure to properly cross examine a state’s witness in that
claim.

In Ground Fourteen, Petitioner asserts that trial

counsel was ineffective for failing to object to or preserve
in a motion for new trial, the state’s failure to establish
probable cause to arrest Petitioner; failure to show
exigency in conjunction with the warrantless entry to
Petitioner’s mother’s residence; and the state’s failure to
prove that consent was freely and voluntarily given to the
officers conducting entry, arrest and search. Petitioner
presented this issue to the post-conviction motion court
in his 29.15 motion. See Petitioner’s Exhibit 22.B., pg. 8.
However, as with the previous grounds, Petitioner did not
raise this ground on the appeal from the denial of his Rule
29.15 motion as one of the ways in which his trial counsel
was ineffective.
 49a

Appendix C

In Ground Fifteen, Petitioner asserts that trial

counsel was ineffective for failing to file a motion for
discovery pursuant to Missouri Rule 25.03, thereby
denying Petitioner the right to prepare an adequate
defense. Petitioner raised this claim in his Rule 29.15
motion. See Petitioner’s Exhibit 22.B, pg. 9. However,
although he raised a claim of ineffective assistance of trial
counsel on appeal, he did not assert this ground as one of
the ways in which his trial counsel was ineffective.

In Ground Sixteen, Petitioner claims that trial counsel

was ineffective for failing to object to, and preserve for
appeal, the state’s failure to prove deliberation as an
essential element of first degree murder. Again, Petitioner
raised this issue in his Rule 29.15 motion. See Petitioner’s
Exhibit 22.B., pg. 9. However, he failed to assert this claim
on the appeal from the denial of his Rule 29.15 motion.

In Ground Twenty-Four, Petitioner claims that trial

counsel was ineffective for failing to file a motion for
appointment of a psychiatrist, particularly in view of his
two prior suicide attempts. Petitioner presented this issue
in his Rule 29.15 motion. See Petitioner’s Exhibit 22.B., pg.
17. However, he failed to assert this claim on the appeal
from the denial of his Rule 29.15 motion.

In Ground Twenty-Seven, Petitioner claims that

trial counsel was ineffective for failing to bring to light,
under cross-examination, the deal reached between the
state and the state’s witness, Demorris Stepp, who had
been given fifteen years on probation in return for his
testimony. Petitioner presented this issue to the post-
 50a

Appendix C

conviction motion court. See Petitioner’s Exhibit 22.B.,

pg. 21. However, Petitioner did not raise this issue on the
appeal from the denial of his Rule 29.15 motion.

In Ground Twenty-Eight, Petitioner asserts that

trial counsel was ineffective for failing to subpoena the
telephone records of Deaconess Hospital for May 18, at
11:45 to 12:05, which would have been consistent with
the testimony of Nicole Williams, who was in the hospital
when Petitioner made this call after hours, and had to
be transferred through switch boards and secretaries to
complete this call. Petitioner presented this issue to the
post-conviction motion court. See Petitioner’s Exhibit
22.B., pg. 21. However, Petitioner did not raise this issue
on the appeal from the denial of his 29.15 motion.

In Ground Twenty-Nine, Petitioner claims that trial

counsel was ineffective when she failed to advise the jury
that, prior to being killed, the victim had shot a man on
his own front porch, and that the state’s witnesses were
connected with the same gang as the victim and were
present when the victim shot this man on his front porch.
Although Petitioner raised this issue in his Rule 29.15
motion, See Petitioner’s Exhibit 22.B., pg. 22, he failed
to include this as a ground in his post-conviction appeal.

In Ground Thirty, Petitioner contends that trial

counsel was ineffective for failing to object to the judge
not issuing an instruction on premeditated murder to the
jury. Petitioner raised this issue in his Rule 29.15 motion.
See Petitioner’s Exhibit 22.B., pg. 22. However, he did not
raise this issue on his appeal from the denial of his Rule
29.15 motion.
 51a

Appendix C

In Ground Thirty-One, Petitioner asserts that trial

counsel was ineffective for not properly cross-examining
Michael Davis; the witness made several inconsistent
statements which would have caused the jury to question
his credibility. Petitioner presented this issue to the post-
conviction motion court. See Petitioner’s Exhibit 22.B., pg.
22. However, he did not include this ground as one of the
bases for his claim of ineffective assistance of trial counsel
when he appealed the denial of his Rule 29.15 motion to
the state appellate court.

In Ground Thirty-Two, Petitioner contends that trial

counsel was ineffective for failing to utilize information
known to her that was beneficial to Petitioner and would
have altered the outcome of the trial and may have been
instrumental in a not guilty verdict. Again, although
Petitioner’s raised this ground in his Rule 29.15 motion,
See Petitioner’s Exhibit 22.B., pg. 23, Petitioner did not
raise this issue when he appealed the denial of his Rule
29.15 motion to the state appellate court.

A post-conviction motion is the exclusive remedy

for a claim of ineffective assistance of trial counsel upon
conviction after trial. State v. Hill, 865 S.W.2d 702, 705
(Mo.App. 1993). See also State v. Wheat, 775 S.W.2d
155 (Mo. banc 1989), cert. denied 493 U.S. 1030 (1990)
(Missouri procedure provides for review of allegations of
ineffective assistance of trial counsel in a post­conviction
motion). The timely filing of a post-conviction pleading is
essential to review of those allegations. Day v. State, 770
S.W.2d 692, 695 (Mo.), cert. denied 493 U.S. 866 (1989).
Failure to file a timely motion constitutes a complete
 52a

Appendix C

waiver. State v. Hill, 865 S.W.2d at 705; State v. Wheat,

775 S.W.2d at 157; Day v. State, 770 S.W.2d at 696.

Furthermore, even if a petitioner raises allegations

of ineffective assistance of trial counsel in his motion for
post-conviction relief, the failure to appeal those issues
to the court of appeals creates a procedural bar. Jones v.
Delo, 56 F.3d 878, 882 (8th Cir. 1995)(procedural bar arises
for failure to appeal post-conviction motion denial); Lowe-
Bey v. Groose, 28 F.3d 816, 818 (8th Cir. 1994)(the failure
to raise claim in an appeal from the denial of Rule 29.15
relief raises a procedural bar to pursuing those claims in
federal court).

Here, Petitioner has procedurally defaulted his

allegations of ineffective assistance of trial counsel as
set forth in Grounds Three, Thirteen, Fourteen, Fifteen,
Sixteen, Twenty-Four, Twenty­ Six, Twenty-Seven,
Twenty-Eight, Twenty-Nine, Thirty, Thirty-One and
Thirty-Two. He did not present any of his allegations set
forth in Ground Three to the post-conviction motion court.
Moreover, he did not present any of his allegations set
forth in Grounds Thirteen, Fourteen, Fifteen, Sixteen,
Twenty-Four, Twenty-Six, Twenty-Seven, Twenty-Eight,
Twenty-Nine, Thirty, Thirty-One and Thirty-Two to the
Missouri Court of Appeals on the appeal from the denial
of his Rule 29.15 motion. Thus, this Court is barred from
reviewing those claims.

Petitioner can overcome this procedural default by

establishing cause and prejudice for failing to present
these allegations fairly to the state courts first. In
 53a

Appendix C

Petitioner’s 96-page reply brief, he appears to articulate

two reasons which he believes constitute “cause” for failure
to raise these grounds in his post-conviction appeal. First,
he asserts fault of the part of his post-conviction counsel.
Second, he claims ignorance and a lack of education. Both
grounds fail.

In proceedings in which the Sixth Amendment

requires legal representation, ineffective assistance
of counsel is cause for a procedural default. Murray
v. Carrier, 477 U.S. 478, 488 (1986). However, because
a defendant is not constitutionally entitled to effective
assistance of counsel in state post-conviction proceedings,
see Coleman v. Thompson, 501 U.S. 722, 752 (1991); Nolan
v. Armontrout, 973 F.2d 615, 616-617 (8th Cir. 1992), a
state post-conviction attorney’s rendering of ineffective
assistance will not constitute cause for a procedural
default. Lamp v. Iowa, --- F.3d ---, No. 96-2946 (8th
Cir. August 13, 1997). Moreover, a petitioner’s lack of
knowledge does not constitute sufficient cause to overcome
the default. Stanley v. Lockhart, 941 F.2d 707, 710 (8th
Cir. 1991). Therefore, the Court finds that Petitioner has
failed to allege cause and prejudice sufficient to overcome
his procedural default.

Although Petitioner also asks this Court to consider

his claims under the “actual innocence exception, ” he
fails to meet the necessary burden permitting the Court
to do so. Petitioner fails to support his allegations of
constitutional error with “new reliable evidence ... that
was not presented at trial.” Schlup v. Delo, ---U.S.---, 115
S.Ct. 851, 865 (1995). Moreover, he has failed to establish
 54a

Appendix C

“that it is more likely than not that no reasonable juror

would have convicted him in the light of the new evidence.”
Id., at 867.

Petitioner cannot overcome his procedural default.

This Court is therefore barred from reviewing Grounds
Three, Thirteen, Fourteen, Fifteen, Sixteen, Twenty-
Four, Twenty-Six, Twenty­Seven, Twenty-Eight, Twenty-
Nine, Thirty, Thirty-One and Thirty-Two. Smittie
Lockhart, 843 F.2d 295, 296 (8th Cir. 1988). Petitioner’s
federal petition for habeas reliefwill be denied with
respect to these grounds.

D. GROUND FOUR

Petitioner asserts, as his fourth ground for relief,

that the trial court erred in permitting the State to use
a peremptory strike to remove venireperson Ronald Lee
Jackson, an African-American, from the venire panel.
See Petition, pg. 51. Petitioner presented this issue to the
Missouri Court of Appeals and that Court ruled as follows:

For his first point on direct appeal, Dunn

contends that the trial court erred in overruling
his Batson motion without considering or
requiring the state to provide reasons for its
use of a peremptory strike against an African-
American venireperson. We agree.
 55a

Appendix C

After the parties had made their peremptory

strikes, defense counsel asked the court to
strike the jury panel and informed the court
that she was making a motion under State v.
Antwine [footnote omitted] and Batson because
the state had struck an African-American male
from the jury panel. Dunn’s counsel advised
the court that Antwine required the state to
give reasons for the strikes before the court
could rule. After hearing further argument,
the trial court ruled that the state did not
have to give reasons for its strike because one
strike out of six did not disturb the numerical
composition of the jury. The court also noted
that the defendant, the three victims, and one
of the investigating officers was [sic] African-
American. The court denied the Batson motion.

***

In ruling on Dunn’s Batson claim, the trial

court denied the motion without requiring the
state to give race-neutral explanations for its
challenges. In Antwine the Missouri Supreme
Court required Missouri trial courts, when
considering Batson challenges, to consider the
state’s explanations in determining whether a
prima facie case had been made....

[I]n Parker, the Missouri Supreme Court

rea dopt ed t he A nt w i ne procedu re a nd
specifically directed the trial court to take the
 56a

Appendix C

following actions when confronted with a timely

Batson motion:

1. T he defenda nt must ra ise a Batso n

challenge with regard to one or more
specific venirepersons struck by the state
and identify the cognizable racial group to
which the venireperson or persons belong,

2. The trial court will then require the state

to come forward with reasonably specific
and clear race-neutral explanations for the
strike.

3. If acceptable reasons are articulated, the

defendant has the burden to show that the
proferred [sic] reasons were pretextual and
the strikes were racially motivated.

See Parker, 836 S.W.2d at 939....

We conclude that under Parker this case must

be remanded for an evidentiary hearing on
the Batson motion to determine whether the
prosecutor used his strike in a discriminatory
manner. The hearing should follow the three
steps outlined in Parker. In considering whether
purposeful discrimination has occurred, the
trial court should take into account the relevant
factors set out in Parker. Id. at 939-40. The trial
court shall certify to this court a record of its
proceeding and its finding. The direct appeal
 57a

Appendix C

is remanded for a hearing consistent with the

holding of this opinion.

See Respondent’s Exhibit 11, pp. 3-6.

Petitioner’s case was remanded to the trial court. A

hearing was held before the trial court on March 9, 1995,
concerning the Batson issue. See Respondent’s Exhibit 2.
The trial court issued its “Findings of Fact and Order” on
April 13, 1995, in which it stated the following:

1. The sole issue before this Court involves

the State’s striking of Venireperson Ronald
Jackson, an African-American male, from the
panel of prospective jurors in Defendant’s first
degree murder trial.

2. The only witness to testify at the hearing on

behalf of the State was The Honorable Steven
R. Ohmer, the then Assistant Circuit Attorney
who prosecuted Defendant’s case.

3. At the hearing, the State presented three (3)

explanations for striking Mr. Jackson: 1) that he
knew Cathy Kelly, Regional Public Defender,
and that Mr. Jackson indicated he may have
attended a seminar with Ms. Kelly; 2) that Mr.
Jackson’s brother-in-law was on probation for
stealing at the time of Defendant’s trial; and
3) that he knew Cynthia Compton, another
member of the prospective jury panel.
 58a

Appendix C

4. While Defendant now asserts that knowing

Ms. Kelly had “no bearing” on whether the
juror could be fair and impartial, it was an
appropriate factor for the State to consider
in exercising its peremptory challenges. The
Court finds that Mr. Jackson’s acquaintance
with Ms Kelly was a reasonably specific and
race-neutral reason for the strike. The Court
further finds that Defendant failed to meet his
burden that the State’s reason was pretextual
and that the strike was, in fact, racially
motivated.

5. The State’s second proffered reason for

striking Mr. Jackson was his brother-in-
law’s probation for stealing. Again, this is a
reasonably specific and race-neutral reason
for the strike. Defendant rebuts this claim by
asserting the State did not strike Venirepersons
Seim or Jaudes. The evidence at the hearing
revealed that Ms. Seim ‘s ex-husband had been
arrested for abuse of child. The State, however,
indicated its belief that this experience would
be favorable to the State.

Venireperson Jaudes, on the other hand,

indicated that he had a brother who had been
taken into police custody for questioning
relative to a stealing. Mr. Jaudes’s brother
was never charged, nor placed on probation for
the incident; it is on this basis that the State
distinguished the two venirepersons.
 59a

Appendix C

The Court finds that Defendant failed to meet

his burden of showing these reasons to be
pretextual. There is no evidence that there were
similarly situated venirepersons (i.e., those with
relatives, by blood or by marriage, who were
on probation at the time of Defendant’s trial)
who were not struck by the State, and that this
strike was racially motivated.

6. The State’s final explanation for striking Mr.

Jackson is that he knew another member of the
jury panel. In fact, the State struck both Mr.
Jackson and Ms. Comptom, the prospective
juror he knew. The Court finds that this was
a reasonably specific and race-neutral reason
for striking the juror. Defendant failed to prove
that his reason was pretextual, and that the
State’s strike was racially motivated.

WHEREFORE, based on the foregoing, it

is the Finding, Order and Judgment of this
Court that Defendant’s Batson challenge to the
State’s use of a peremptory challenge to remove
Venireperson Jackson is hereby OVERRULED
and DENIED. Pursuant to the Remand Order
of the Court of Appeals, Eastern District in this
cause, the Court hereby certifies the findings
contained herein.

See Respondent’s Exhibit 5, pp. 1-3.

 60a

Appendix C

The issue was again appealed to the Missouri Court

of Appeals. On September 12, 1995, that court affirmed
the decision of the trial court:

[T]he issue for this court is whether the trial

court’s findings on the issue of discriminatory
intent are clearly erroneous, a finding which
turns primarily on an assessment of credibility.
[citation omitted].

The explanations given were race-neutral. The

decisive question is whether counsel’s race-
neutral explanation will be believed by the
trial court. [citations omitted]. The trial court
accepted the explanations. We have examined
the explanations and the circumstances which
appear in the record. It is clear from the findings
that the trial court viewed the plausibility of the
state’s explanations in light of the totality of the
facts and circumstances of the case, as Parker
requires. [citations omitted].

The trial court took a permissible view of

the evidence in crediting the prosecutor’s
explanation. We have no opportunity to review
the demeanor of the prosecutor; however,
there were many objective factors in the
record which would support a finding of no
intent to discriminate. The record discloses
that, unlike Jackson’s brother-in­ law, the two
referenced white venirepersons’ relatives were
not convicted of crimes. The record further
 61a

Appendix C

discloses that neither of these venirepersons

knew someone in the public defender’s office or
another venireperson. On the other hand, the
state struck Compton, a white venireperson
who knew Jackson. The record also discloses
that the state struck two white venirepersons
who knew persons in public defenders’ offices.
Although there were two African­ Americans
on the venire panel, the state only struck
one, Jackson. All of the state’ remaining
peremptory strikes were exercised against
white venirepersons. The three victims in
this case were also African-Americans. The
main homicide investigator, who prepared the
photospread and conducted the line-up, was an
African-American.

The trial court’s findings are not clearly

erroneous. The judgment of the trial court is
affirmed.

See Respondent’s Exhibit 12, pp. 9-11.

As stated in Section II, supra, the pertinent beginning

point for this Court’s analysis is the opinion of the Missouri
Court of Appeals. The Court must consider that opinion
and determine whether the state court’s opinion on the
Batson issue “resulted in a decision that was contrary
to, or involved an unreasonable application of, clearly
established Federal, as determined by the Supreme Court
of the United States.” 28 U.S.C. § 2254(d)(l). See James v.
Bowersox, 187 F.3d 866, 869 (8th Cir. 1999).
 62a

Appendix C

Federal law is established on the issue of racially

discriminatory peremptory strikes. The Equal Protection
Clause forbids a prosecutor from using peremptory
challenges to exclude otherwise qualified persons from
the jury based solely on their race. Devose v. Norris, 53
F.3d 201, 204 (8th Cir. 1995).

Under Batson in order to establish an equal

protection violation, the defendant must first
establish a prima facie case of purposeful
discrimination in the selection of the jury panel.
[Batson, 476 U.S. 79 (1986)] at 96. To establish
a prima facie case, the defendant must show
that he is a member of a cognizable racial group
and that the prosecutor exercised peremptory
challenges to remove members of his race from
the venire. Id. He then “‘must show that these
facts and any other relevant circumstances
raise an inference that the prosecutor used [his
peremptory] practice to exclude the veniremen
from the petit jury on account of their race.”’
United States v. Battle, 836 F.2d 1084, 1085 (8th
Cir. 1987)(quoting Batson, 476 U.S. at 96). Once
the defendant has established a prima facie
case of race discrimination, the government
has “the burden of articulating a clear and
reasonably specific neutral explanation for
removing a venireperson of the same race as
the defendant.” United States v. Cloyd, 819 F.2d
836, 837 (8th Cir. 1987).
 63a

Appendix C

Whether an explanation is neutral is a question

of comparability. “It is well-established that
peremptory challenges cannot be lawfully
exercised against potential jurors of one
race unless potential jurors of another race
with comparable characteristics are also
challenged.” Doss v. Frontenac, 14 F.3d 1313,
1316-17 (8th Cir. 1994) [remaining citations
omitted].

Devose, 53 F.3d at 204. See also United States v. Brooks, 2

F.3d 838 (8th Cir. 1993), cert. denied 510 U.S. 1137 (1994).

In this case, on remand to the trial court, the

prosecutor articulated clear and reasonably specific
neutral explanations for removing Venireman Ronald
Lee Jackson, an African-American, from the panel.
Moreover, he applied those reasons for striking Mr.
Jackson consistently across the venire panel. The Missouri
Court of Appeals found that the reasons offered by the
State for striking Mr. Jackson were race neutral and not
a violation of Batson.

Petitioner has not established that the decision of the

Missouri Court of Appeals with respect to the Batson
challenge 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. James v. Bowersox, 187 F.3d
866, 869 (8th Cir. 1999). Moreover, the Court finds that
the appellate court’s decision did not result in a decision
that was based on an unreasonable determination of
 64a

Appendix C

the facts in light of the evidence presented in the State

court proceeding. Warren v. Smith, 161 F.3d at 360-361.
Therefore, Petitioner’s § 2254 petition for habeas corpus
relief will be denied with respect to Ground Four.

E. GROUND FIVE

For his fifth ground for relief, Petitioner asserts

that the trial court abused its discretion in overruling
his objection to the state’s comments during voir dire
concerning reasonable doubt. Petitioner objected on
the ground that the comments constituted an improper
statement of law.

Petitioner presented this issue to the Missouri

Court of Appeals on direct appeal. The appellate court
thoroughly addressed the issue and rejected it as follows:

Dunn objected to the following statements

made during voir dire:

[Prosecutor]: But in this criminal

case as in every criminal case, the
state represented by myself, has the
burden of proof. I have the burden of
presenting evidence to you. Everybody
understand that? Any problem with
that? And the burden I must meet is
proof beyond a reasonable doubt. And
that burden goes to the elements of
the crime.
 65a

Appendix C

At this point defense counsel objected and the

court overruled the objection. The prosecutor
continued:

[Prosecutor]: Again, in any crime

there are specific elements or acts
which must be proved before you can
find the defendant guilty. There may
be one act, two acts, three acts, four
acts; just depends on the crime.

And the Judge will instruct you in

connection with what those elements
are at the conclusion of the case. But
that is what my burden goes to, beyond
a reasonable doubt. Not all doubt or
any doubt, but a reasonable doubt.
Does anybody have any problem with
that?

The trial court is given broad control over the

nature and extent of voir dire questioning;
we do not interfere unless the record shows a
manifest abuse of that discretion. State v. Roe,
845 S.W.2d 601, 605 (Mo.App. 1992). While
counsel may not define reasonable doubt for
the jury, the state may discuss the concept
with the jury. Roe, 845 S.W.2d at 604. We use
a three part test to distinguish definition from
discussion. For the comments to constitute
reversible error, 1) the state must state an
incorrect definition of reasonable doubt before
 66a

Appendix C

the jury, 2) defense counsel must object, and 3)

if the objection was overruled, the state must
continue to define reasonable doubt. Id.

***

Dunn argues that the remarks were erroneous

because they invited the jury to ignore its duty
to consider conflicts in the evidence in reaching
a determination of credibility. We disagree that
the remarks conveyed such a meaning. In State
v. Jacobs, 866 S.W.2d 919, 920-21 (Mo. App.
1993), on which Dunn relies, the prosecutor
stated:

Okay. Do you understand that this

burden of beyond a reasonable doubt
applies only to the elements that are
charged in this case? In other words,
there are three counts that are
charged here in the petition. Youre
[sic] going to hear testimony from a
variety of witnesses, and their stories
may not exactly jibe. [sic] Its [sic]
very infrequent that you find people
that will come in and tell you exactly
the same story, whether its witness
A and B.

Defendant objected on the grounds that the

prosecutor was discussing the sufficiency of
the evidence and was argumentative. The
 67a

Appendix C

trial court overruled the objection and the

prosecutor continued:

Okay. Im [sic] going to repeat the last

question again. Do you understand
that the burden of reasonable doubt
applies only to the elements that are
given in the instructions? Youre [sic]
going to have witnesses here that are
going to give you different testimony,
and you cant [sic] let that interfere.
You need to consider the reasonable
doubt instruction as it -- or the burden
as it applies to the case, as it applies
to the elements that are charged in
this case and not as to the conflicts in
evidence. Is that understood?

Id. at 921.

In Jacobs our Western District agreed with

Brown that an explanation that proof beyond
a reasonable doubt did not apply to matters
other than the elements of the crime was not
an erroneous definition of reasonable doubt. Id.
at 921, 922. However, it found the prosecutor’s
whole question was ill-advised because the
prosecutor also attempted to distinguish the
jury’s duty of finding each element beyond a
reasonable doubt from its responsibility to
determine the credibility of the witnesses. The
court found this action tended to confuse and
 68a

Appendix C

served no useful purpose. Id. at 922. The court

held that the question was argumentative and
the objection on that ground should have been
sustained. Id. However, the court found the
error was not prejudicial.

In this case the prosecutor limited his question

to the application of reasonable doubt to the
elements. The trial court did not abuse its
discretion in overruling Dunn’s objection that
the prosecutor misstated the law. Point two is
denied.

See Respondent’s Exhibit 11, pp. 6-10.

As stated in Section II, supra, the pertinent beginning

point for this Court’s analysis is the opinion of the Missouri
Court of Appeals. Considering that opinion, the Court
finds that the state court’s opinion on this issue did not
result 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. 28 U.S.C. § 2254(d)(1). See James v. Bowersox, 187
F.3d 866, 869 (8th Cir. 1999).

The scope of review by federal courts of habeas corpus

petitions alleging violations of due process is narrow.
Moore v. Wyrick, 760 F.2d 884, 886 (8th Cir. 1985). In
this case, Petitioner must show that the prosecutor’s
remarks were so egregious that they fatally infected
the proceedings and rendered Petitioner’s entire trial
fundamentally unfair. Id. See also Culkin v. Purkett, 45
 69a

Appendix C

F.3d 1229, 1235 (8th Cir. 1995); Pollard v. Delo, 28 F.3d

887, 890 (8th Cir. 1994). Petitioner can meet this burden
only by showing that absent the prosecutor’s statement,
there is a reasonable probability that the jury would have
returned a different verdict. Crespo v. Armontrout, 818
F.2d 684, 687 (8th Cir. 1987).

The Court has reviewed the record in its entirety and

has considered the overall fairness of the trial. Review of
the comments Petitioner finds objectionable reveals that
the prosecutor neither defined nor misdefined reasonable
doubt. The prosecutor merely told the jury that he had
the burden of proving all the elements of the offense
charged beyond a reasonable doubt and that his burden
of proof beyond a reasonable doubt extended only to the
elements of the offenses. Applying the narrow standard of
review to the instant case, the Court cannot say that the
prosecutor’s statements during voir dire were so “‘gross,
conspicuously prejudicial or of such import that the trial
was fatally infected.”’ Culkin, 45 F.3d at 1235 (quoting
Logan v. Lockhart, 994 F.2d 1324, 1330 (8th Cir. 1993)).
This is especially so in light of the fact that the jury was
properly instructed on reasonable doubt by the trial court.
Williams v. Groose, 77 F.3d 259, 262 (8th Cir. 1996) (Even
if the prosecutor’s remarks about reasonable doubt during
voir dire constituted trial error warranting reversal under
state law, given the jury instructions correctly defining
reasonable doubt, the prosecutor’s remarks did not make
Williams’ trial fundamentally unfair”).

Petitioner has not established that the decision of

the Missouri Court of Appeals with respect to this issue
 70a

Appendix C

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. James v. Bowersox, 187 F.3d 866, 869 (8th Cir.
1999). Moreover, the Court finds that the appellate court’s
decision did not result in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding. Warren
v. Smith, 161 F.3d at 360-361. Therefore, Petitioner’s
§ 2254 petition for habeas corpus relief will be denied with
respect to Ground Five.

F. GROUND SIX

For his sixth ground for relief, Petitioner contends

that the trial court erred in permitting the prosecutor
to comment to the jury on ten occasions that the state’s
evidence was uncontradicted as this constituted an
impermissible comment on Petitioner’s failure to testify.
Petitioner presented this issue to the Missouri Court of
Appeals. The appellate court reviewed Petitioner’s claim
under plain error and rejected it:

During his closing argument the prosecutor

reviewed specific evidence with the jury which
the prosecutor contended was uncontradicted:
that the victim died as a result of a gunshot
wound in the back of the head; that St. Louis
police officers chased Dunn, who ran, and
apprehended him; that the surviving victims
identified Dunn as the perpetrator; and that
the surviving victims knew Dunn from the
 71a

Appendix C

neighborhood. The prosecutor also referred to

the evidence as uncontradicted on two other
occasions in closing and twice on rebuttal....

***

A prosecutor’s comment that the evidence

is uncontroverted or uncontradicted, or that
the defendant has failed to offer evidence, is
not a direct or certain reference to a criminal
defendant’s failure to testify. State v. Stanley,
860 S.W.2d 836, 837 (Mo. App. 1993); State v.
Robinson, 641 S.W.2d 423, 426 (Mo. banc 1982).
Dunn argues that the assertion that certain
evidence was uncontradicted constituted an
indirect reference to his failure to testify.

A prosecutor may violate a defendant’s right

against self­ incrimination if, during closing
arguments, the prosecutor makes an indirect
reference which operates to focus the jury’s
attention on the fact that defendant failed to
testify. State v. Lawhorn, 762 S.W.2d 820, 826
(Mo. banc 1988); State v. Hemphill, 608 S.W.2d
482, 484 (Mo.App. 1980). An indirect reference
is improper only if the prosecutor demonstrates
a calculated intent to magnify that decision
so as to call the failure to testify to the jury’s
attention. Lawhorn, 762 S.W.2d at 826; State
v. Wood, 719 S.W.2d 756, 761 (Mo. banc 1986).
 72a

Appendix C

In this case the specific evidence which the

prosecutor characterized as uncontradicted
related to conclusions, observations, and
k nowledge of the other w itnesses. The
challenged comments do not show that the
prosecutor had a calculated intent to call the
jury’s attention to Dunn’s decision not to testify
and they were not reasonably likely to call the
jury’s attention to Dunn’s failure to testify.
The trial court did not plainly err in failing to
declare a mistrial sua sponte. Point three is
denied.

See Respondent’s Exhibit 11, pp. 10-12.

Beginning with the opinion of the Missouri Court of

Appeals, the Court finds that the state court’s opinion on
this issue did not result 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. 28 U.S.C. §  2254(d)(1). See
James v. Bowersox, 187 F.3d 866, 869 (8th Cir. 1999).

Federal law is clearly settled on this issue. Indirect

references to a defendant’s failure to testify are violative
of a defendant’s constitutional rights only if they “(1)
manifest the prosecutor’s intention to call attention to the
defendant’s failure to testify, or (2) are such that the jury
would naturally take them as a comment on the defendant’s
failure to testify.” United States v. Christians, 200 F.3d
1124, 1128 (81 Cir. 1999); Feltrop v. Delo, 46 F.3d 766, 775
(8th Cir. 1995) (quoting United States v. Montgomery, 819
 73a

Appendix C

F.2d 847, 853 (8th Cir. 1987)). A prosecutor’s comment

to the effect that “there is no contradictory evidence”
is viewed as an “indirect, ” as opposed to a “direct, ”
reference to a defendant’s failure to testify. Christians,
100 F.3d at 1128.

Here, the statements made by the prosecutor, with

which Petitioner objects, are all indirect references to
Petitioner’s failure to testify. The prosecutor spoke only
of “uncontradicted evidence.” The prosecutor’s references
to this “uncontradicted evidence” did not manifest the
prosecutor’s intention to call attention to Petitioner’s
failure to testify. Nor were they such that the jury would
naturally taken them as a comment on Petitioner’s failure
to testify. Therefore, the fact that these statements were
made by the prosecutor did not give rise to a violation of
Petitioner’s constitutional rights.

Petitioner has not established that the decision of

the Missouri Court of Appeals with respect to this issue
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. James v. Bowersox, 187 F.3d 866, 869 (8th Cir.
1999). Moreover, the Court finds that the appellate court’s
decision did not result in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding. Warren
v. Smith, 161 F.3d at 360-361. Therefore, Petitioner’s
§ 2254 petition for habeas corpus relief will be denied with
respect to Ground Six.
 74a

Appendix C

G. GROUND SEVEN, GROUND TWENTY

For his seventh ground for habeas relief, Petitioner

asserts that the trial court erred when it overruled
Petitioner’s objection to the submission of Instruction
No. 4, the reasonable doubt instruction, because the
instruction is unconstitutional in that it requires a burden
of proof for conviction less than is required by the due
process clause. For his twentieth ground for habeas relief,
Petitioner asserts the same claim. That is, he claims the
trial court erred in overruling Petitioner’s objection to the
submission of lnstruction No. 4, because the phrase “firmly
convinced” required a lesser proof than that required by
the constitution.

The Missouri Court of Appeals addressed this issue

thoroughly:

This issue has been thoroughly and repeatedly

addressed by the Missouri Supreme Court.
State v. Griffin, 848 S.W.2d 464, 469 (Mo. banc
1993); State v. Twenter, 818 S.W.2d 628, 634
(Mo. banc 1991). This court is constitutionally
bound to follow the last controlling decision of
the Supreme Court of Missouri. State v. Weems,
800 S.W.2d 54, 58 (Mo.App. 1990).

Dunn argues we should reverse or transfer to

the Missouri Supreme Court in order for the
instruction to be reanalyzed in light of Victor v.
Nebraska, --U.S.--, 114 S.Ct. 1239, 127 L.Ed.2d
583 (1994). Victor does not change the Griffin
analysis.
 75a

Appendix C

In Victor, the United States Supreme Court

reviewed reasonable doubt instructions given
in a California case and a Nebraska case both
of which instructed jurors that they must have
“an abiding conviction to a moral certainty
of the charge.” The court held the use of the
phrase “moral certainty” in both instructions
did not render the instructions unconstitutional
because other language in the two instructions
kept the jury from interpreting the words
“moral certainty” as suggesting a standard of
proof less than due process requires.

Dunn uses this case to support his contention

that the use of “firmly convinced” in MAI-
CR3d 302.04 is insufficient because it does not
contain other language which would make this
instruction constitutional. However Dunn does
not cite any case holding that the words “firmly
convinced” have the same ambiguity as “moral
certainty” [footnote omitted] and thus need to
be “saved” by other language in the instruction.

Dunn relies instead on the Federal Judicial

Center’s Pattern Criminal Jury Instruction 21
on reasonable doubt to support his argument.
Like MAI-CR3d 302.04 that instruction defines
reasonable doubt as proof which leaves the
jurors “firmly convinced” of the defendant’s
guilt. The MAI instruction ends with, “If
you are not so convinced, you must give him
the benefit of the doubt and find him not
 76a

Appendix C

guilty.” However, the Federal Judicial Center

instruction ends with, “If on the other hand,
you think there is a real possibility that he is
not guilty, you must give him the benefit of the
doubt and find him not guilty.” The fact that the
Federal Judicial Center instruction uses the
phrase “if -- you think there is a real possibility
that he is not guilty” in lieu of “if you are not
so convinced” is not authority for a conclusion
that MAI-CR3d 302.04 does not comport with
due process. [footnote omitted]

Dunn provides us with no basis to transfer

this case to the Missouri Supreme Court for
re-evaluation of Griffin. Point four is denied.

See Respondent’s Exhibit 11, pp. 12-14.

This exact issue concerning this same Missouri

“reasonable doubt” instruction has been presented by
other §  2254 habeas petitioners to the Eighth Circuit
Court of Appeals. The Eighth Circuit has consistently
ruled that the merits of this claim cannot be reached
because the issue is barred by Teague v. Lane, 489 U.S.
288 (1989). See Antwine v. Delo, 54 F.3d 1357, 1370 (8th Cir.
1995); Murray v. Delo, 34 F.3d 1367, 1381-1382 (8th Cir.
1994). Therefore, Petitioner’s § 2254 petition for habeas
relief will be denied with respect to Grounds Seven and
Twenty.
 77a

Appendix C

H. GROUND EIGHT, GROUND NINETEEN

For his eighth ground for relief, Petitioner contends

that the trial court erred in overruling Petitioner’s motion
to quash the indictment because the grand jury and petit
jury selection were not drawn from a fair cross-section of
the community. In Ground Nineteen, Petitioner asserts
the same claim for relief. There he asserts that the trial
court erred in overruling defense counsel’s motion to
quash the indictment due to error in the jury process.

Petitioner presented this issue to the Missouri Court

of Appeals and that court rejected his argument as follows:

For his fifth point Dunn asserts that the trial

court erred in overruling his motion to quash
the indictment or, alternatively in overruling
his motion to stay proceedings because the
selection procedures for the grand and petit
juries in the City of St. Louis denied him a jury
which reflected a fair cross section of the citizens
as required by §  494.400 through 494.505,
RSMo Cum. Supp. 1989. He contends that the
procedures resulted in an underrepresentation
of African-Americans and persons between the
ages of 21-29.

Dunn premises his argument relating to grand

jury selection on a statistical study compiled in
October 1990 by Kenneth Warren, Ph.D. The
data involved practices prevalent in the grand
jury selection process from 1985 to May 1990.
 78a

Appendix C

We have held this statistical analysis to be

irrelevant to grand jury selection procedures
occurring after the 1989 changes to the
statutory provisions of §§  494.400-494.505.
State v. Wheeler, 845 S.W.2d 678, 681 (Mo.
App. 1993). These revisions were in effect when
the grand jury returned Dunn’s indictment in
June 1990. “Because the statistical analysis
did not cover the period of time relevant to the
prosecution of defendant, the data cannot be
used to support his constitutional challenge to
the grand jury selection procedures.” Id. See
also State v. Plummer, 860 S.W.2d 340, 351
(Mo. App. 1993).

Likewise Dunn’s challenge to the selection of

the petit jurors in the City of St. Louis has
been addressed and rejected many times by
this court. The Honorable Ronald M. Belt
considered this challenge on a motion to stay
all jury trials in the City of St. Louis in another
criminal case. After a hearing, he issued an
order staying all jury trials on October 16, 1990.
Although he found no under­ representation of
racial, gender, or age groups, he found that the
procedures used in granting juror continuances
resulted in a non­ random selection of some
juror panels. The Board of Jury Commissioners
immediately corrected this impropriety and
Judge Belt lifted the stay order.
 79a

Appendix C

We have held that “[t]he evidence amply

supports Judge Belt’s finding of no under-
representation of racial, gender, or age groups.”
Plummer, 860 S.W.2d at 352 (quoting State v.
Landers, 841 S.W.2d 791, 793 (Mo.App. 1992)).
An administrative order issued by the Board of
Jury Commissioners before Dunn was indicted
corrected the perceived deficiencies in the petit
jury selection procedures. Wheeler, 845 S.W.2d
at 681-82; Plummer, 860 S.W.2d 352. Dunn
presented no evidence that the new procedures
in place at the time of his trial were inadequate.
Point five is denied.

See Respondent’s Exhibit 11, pp. 14-16.

Beginning with the opinion of the Missouri Court of

Appeals, the Court finds that the state court’s opinion on
this issue did not result 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. 28 U.S.C. §  2254(d)(l). See
James v. Bowersox, 187 F.3d 866, 869 (8th Cir. 1999).

Federal law on this issue is clearly established. A

criminal defendant is guaranteed a jury chosen from
a fair cross section of the community. Phea v. Benson,
95 F.3d 660, 662 (8th Cir. 1996). In order to establish a
violation of this right, Petitioner must establish that: (1)
African­Americans and people aged 21-20 are a distinctive
group in the community; (2) the representation of African-
Americans and people aged 21-29 in jury pools is not
 80a

Appendix C

fair and reasonable in relation to the number of African-

Americans and people aged 21-29 in the community; and
(3) this under-representation is due to systematic exclusion
of African-Americans and people aged 21-29 in the jury-
selection process. Phea, 95 F.3d at 662. See also Duren v.
Missouri, 439 U.S. 357, 364 (1979).

The Court concurs with the Missouri Court of Appeals

that Petitioner has not presented any evidence showing
either that the representation of African-Americans and
people aged 21-29 in jury pools is not fair and reasonable
in relation to the number of African-Americans and
people aged 21-29 in the community or that this under-
representation is due to systemic exclusion of African-
Americans and people aged 21-29 in the jury-selection
process. As the state appellate court noted, the statistical
evidence presented by Petitioner dealt with a time period
before new grand jury procedures were in place to better
ensure fairness and thus was not applicable to Petitioner’s
case. Moreover, the Missouri Court of Appeals noted that
in another case the St. Louis courts had analyzed St. Louis
City jury petit panels for under-representation and found
none and that steps had been taken to further randomize
the selection system since that analysis was conducted.

Petitioner has not established that the decision of

the Missouri Court of Appeals with respect to this issue
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. James v. Bowersox, 187 F.3d 866, 869 (8th Cir.
1999). Moreover, the Court finds that the appellate court’s
decision did not result in a decision that was based on an
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unreasonable determination of the facts in light of the

evidence presented in the State court proceeding. Warren
v. Smith, 161 F.3d at 360-361. Therefore, Petitioner’s
§ 2254 petition for habeas corpus relief will be denied with
respect to Grounds Eight and Nineteen.

I. GROUNDS NINE, TEN and ELEVEN

For his ninth ground for relief, Petitioner asserts that

the post-conviction motion court erred in failing to inquire
of post-conviction counsel why no amended motion was filed
by counsel and whether all grounds known to Petitioner
were raised. For his tenth ground, Petitioner asserts that
the post-conviction motion court erred in failing to issue
findings of fact and conclusions of law on all issues as
required by Missouri Supreme Court Rule 29.15(i). For
ground eleven, Petitioner asserts that the post-conviction
motion court erred when it adopted verbatim the state’s
proposed findings of fact and conclusions of law.

Petitioner presented each of these three grounds to

the Missouri Court of Appeals on the appeal from the
denial of his motion for post-conviction relief. The Missouri
Court of Appeals examined each of these arguments
thoroughly and rejected each of them in a lengthy opinion.
See Respondent’s Exhibit 11, pp. 16-27. Regardless of
the state appellate court’s decision, however, Petitioner’s
ninth, tenth and eleventh grounds for relief are not
cognizable in a federal proceeding for habeas corpus relief.
Section 2254 only authorizes federal courts to review the
constitutionality of a state criminal conviction. The Court
cannot review infirmities in a state post-conviction relief
proceeding. Williams-Bey v. Trickey, 894 F.2d 314 (8th
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Appendix C

Cir. 1990). Thus, the Court will deny Petitioner’s § 2254

petition with respect to Grounds Nine, Ten and Eleven.

J. GROUNDS TWELVE, SEVENTEEN, TWENTY-

FIVE and THIRTY-THREE

For his twelfth ground for relief, Petitioner contends

that trial counsel was ineffective because counsel failed
to investigate and call as alibi witnesses Arnetta Dunn
and Martha Dunn; failed to investigate and call Nicole
Williams as a witness, who would have testified that
Petitioner telephoned her at the hospital at or near the
time of the alleged offense; and failed to investigate and
call Dwayne Rogers (the deceased victim’s brother) as a
witness, who would have testified that he was at the scene
of the shooting and another person, not Petitioner, was
the shooter.

Petitioner reiterates this claim in Ground Seventeen,

where he asserts that trial counsel was ineffective for
failing to put on any defense; this precluded Petitioner
from calling Dewayne Roger, the victim’s brother, who
was on the scene and would have testified that Petitioner
was not the man that killed his brother.

In Ground Twenty-Five, Petitioner again asserts that

trial counsel was ineffective for not putting on Petitioner’s
alibi defense, which consisted of testimony from Arnetta
Dunn, Martha Dunn, and Nicole Williams. 3

3.  In Ground Twenty-Five, Petitioner also asserts that trial

counsel was ineffective for failing to call Angela Dunn, Karry Dunn,
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Appendix C

In Ground Thirty-Three, Petitioner asserts once more

that trial counsel was ineffective for failing to contact
thirteen alibi witnesses in Petitioner’s defense and to
investigate these potential alibi witnesses.4

Petitioner presented this issue of ineffective assistance

of trial counsel to the Missouri Court of Appeals, which
rejected Petitioner’s argument as meritless:
Wilford Rickman, Cathy Jackson and Crystal Johnson as alibi
witnesses, all of whom would have testified that Petitioner was at
home at the time of the shooting. Petitioner identified these witnesses
as part of his claim of ineffective assistance of trial counsel in his
motion for post-conviction relief. See Petitioner’s Exhibit 22.B., pg.
19. However, he did not identify these witnesses as part of his claim
when he appealed the denial of his Rule 29.15 motion to the Missouri
Court of Appeals. Thus, Petitioner has procedurally defaulted his
claim with respect to these witnesses. He has not established cause
and prejudice for failing to identify these witnesses as part of his
claim on appeal and has failed to establish actual innocence. As a
result, this Court is procedurally barred from reviewing this aspect
of Petitioner’s twenty-fifth ground for relief and Petitioner’s federal
petition for habeas relief with respect to this portion of his twenty-
fifth claim will be denied on that basis.

4.  Although Petitioner claims the trial attorney was ineffective

for failing to investigate and contact thirteen alibi witnesses, he
only identified four of those witnesses when he appealed this issue
to the Missouri Court of Appeals. Thus, Petitioner has procedurally
defaulted his claim with respect to the remaining nine witnesses,
whoever they are. He has not established cause and prejudice for
failing to identify these witnesses as part of his claim on appeal
and has failed to establish actual innocence. As a result, this Court
is procedurally barred from reviewing this aspect of Petitioner’s
thirty-third ground for relief and Petitioner’s federal petition for
habeas relief with respect to this portion of his thirty-third claim
will be denied on that basis.
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Appendix C

For his ninth point, Dunn contends he was

denied effective assistance of counsel because
his trial counsel failed to investigate and call
Arnetta Dunn, Martha Dunn, and Nicole
Williams as alibi witnesses and Dewayne
Rogers as an alibi witness. In his motion
Dunn alleged that he gave Arnetta Dunn’s
and Martha Dunn’s names and addresses to
counsel and they would have testified that Dunn
was at home when the shooting occurred. He
also alleged that Nicole Williams would have
testified that she was in the hospital and Dunn
telephoned her there at the time of the shooting.
He alleged that Dewayne Rogers was at the
scene of the shooting and would have testified
that Dunn was not the person who killed the
victim.

We have already considered the claim relating

to Dewayne Rogers and found that Dunn did not
elicit substantial evidence that Dunn could have
been located, would have testified if called, or
that his testimony would have provided a viable
defense. Accordingly, Dunn did not establish
ineffective assistance of counsel with respect
to the failure to call Dewayne Rogers.

At the motion hearing Dunn’s trial counsel

testified that she decided not to use the alibi
defense that Dunn was at home at the time
of the shooting because it was a “weak, if not
bad”defense. She spoke with Martha Dunn,
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Appendix C

movant’s mother, on several occasions but

concluded she would not be a good witness
because she admitted she lied to the police on
two occasions. Martha Dunn had given police
Dunn’s clothing which matched the description
of the perpetrator’s clothing, and trial counsel
did not want the prosecutor to use Martha
Dunn to put that clothing into evidence. Martha
Dunn’s explanation for lying to the police
included an explanation that Dunn had escaped
from a halfway house which would indicate prior
convictions. Counsel’s investigator interviewed
Arnetta Dunn who would have contradicted
Martha Dunn and also would have explained
that she was there when Martha Dunn lied to
police, but did not volunteer the truth because
Dunn had escaped from a halfway house.

Trial counsel was never able to contact Nicole

Williams. Post­ conviction counsel asked
Williams to testify at the PCR hearing but
Williams said she had to work. After the
hearing the motion court continued the case in
order to give Williams an opportunity to testify.
Williams was subpoenaed for the next setting,
but arrived too late to testify. The hearing was
reset. Post-conviction counsel’s investigator re-
subpoenaed Williams for the third setting, but
when counsel talked to Williams by telephone
the night before the hearing, Williams denied
she had been subpoenaed and contended
she could not miss summer school and come
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Appendix C

to court. She did not appear. The court

accepted counsel’s offer of proof which was that
Christopher Dunn called her at the hospital the
night her baby was born, but she was unsure of
the time of the call except that it was “maybe”
after a particular television program.

The motion court found that even if the witnesses

were believed they would not have provided a
defense because the time was “imprecise.” It
also found that the decision to call witnesses is
a matter of professional judgment and counsel
had expressed reasons why these witnesses
should not be called.

Appellate review of a denial of post-conviction

relief is limited to whether the findings,
conclusions and judgment of the motion court
are clearly erroneous. Rule 29.15(j); Vinson,
800 S.W.2d at 448.

To prevail on a claim of ineffective assistance of

counsel, a movant must show both that counsel’s
performance was deficient and that the deficient
performance prejudiced his defense. Strickland
v. Washington, 466 U.S. 668, 687, 104 S.Ct.
2052, 2064, 80 Led.2d 674, 693 (1984). To
prove deficient performance a movant must
show that counsel’s acts or omissions were
outside the range of professionally competent
assistance. Id. Movant must overcome the
presumption that counsel’s challenged acts or
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Appendix C

omissions were sound trial strategy. State v.

Childers, 801 S.W.2d 442, 447 (Mo. App. 1990).
To show prejudice a movant must show there
was a reasonable probability that, but for the
errors by his attorney, the jury would have
had a reasonable doubt respecting his guilt.
Id. If a movant makes an insufficient showing
on either the deficient performance component
or the prejudice component, the court need not
address the other component. Strickland, 466
U.S. at 697, 104 S.Ct. at 2069. Here, the trial
court did not clearly err in finding that the
decision not to call the alibi witnesses was trial
strategy and that Nicole Williams’ testimony
would not have provided a defense.

The trial court’s finding that Dunn was not

denied effective of trial counsel is not clearly
erroneous. Point nine is denied.

See Respondent’s Exhibit 11, pp. 24-27.

Upon consideration of the opinion of the Missouri

Court of Appeals as the pertinent beginning point for this
Court’s analysis, the Court finds that the state court’s
opinion on this issue did not result 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. 28 U.S.C. § 2254(d)
(1). See James v. Bowersox, 187 F.3d 866, 869 (8th Cir.
1999).
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Appendix C

Federal law is clearly established with respect to

ineffective assistance of trial counsel. Because defense
counsel is presumed to be effective, Cox v. Wyrick, 642
F.2d 222, 226 (8th Cir.), cert. denied 451 U.S. 1021 (1981),
Petitioner bears a heavy burden in proving that counsel
has rendered ineffective assistance. Howard v. Wyrick,
720 F.2d 993, 995 (8th Cir. 1983), cert. denied 466 U.S.
930 (1984). See also Sidebottom v. Delo, 54 F.3d 1357, 1365
(8th Cir. 1995).

In order to prevail on a claim of ineffective assistance

of counsel, a petitioner must first demonstrate that his
attorney failed to exercise the degree of skill and diligence
that a reasonably competent attorney would exercise
under similar circumstances. Strickland v. Washington,
466 U.S.

668, 687 (1984). This requires the petitioner to show

that “counsel made errors so serious that counsel was
not functioning as the ‘counsel’ guaranteed by the Sixth
Amendment.” Id. Sanders v. Trickey, 875 F.2d 205, 207-08
(8th Cir.), cert. denied 493 U.S. 898 (1989)(the standard
of conduct is that of a reasonably competent attorney; to
comply with this requirement, petitioner must prove that
his counsel’s assistance fell below an objective standard of
reasonableness, considering all the circumstances faced
by the attorney at the time in question.)

The petitioner must then demonstrate that he suffered

prejudice by his attorney’s actions. To show prejudice
required by Strickland, supra, the petitioner must
demonstrate that counsel’s errors were so serious as to
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Appendix C

render the result of the trial unreliable or the proceeding

fundamentally unfair. Since Strickland, the United States
Supreme Court has clarified the “prejudice” analysis to
be applied in ineffective assistance of counsel cases. The
Court stated that the petitioner must show not only that
the outcome of the proceeding would have been different,
but something more. The Supreme Court explained:

[A]n analysis focusing solely on mere outcome

determination, without attention to whether
the result of the proceeding was fundamentally
unfair or unreliable, is defective. To set aside
a conviction or sentence solely because the
outcome would have been different but for
counsel’s error may grant the defendant a
windfall to which the law does not entitle him.

Lockhart v. Fretwell, --- U.S. ---, 113 S.Ct. 838, 842-

43 (1993)(footnote omitted). Thus, the Supreme Court
specified that the proper prejudice analysis is whether
“counsel’s errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable.” Id.

The appellate court noted that Petitioner presented

no substantial evidence that the alleged eyewitness could
have been located, that he would have testified if called
and that if he did testify that his testimony would have
presented a viable defense. The court also noted that
counsel decided not to present the alibi defense because
it was “weak.” Trial counsel also indicated that he alibi
witnesses contradicted each other when interviewed by a
defense investigator and their testimony would probably
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Appendix C

have opened the door to other damaging evidence. Finally,

a witness Petitioner claims would have corroborated the
alibi testimony of the two alibi witnesses repeatedly failed
to show up at the post-conviction hearing and the offer of
proof as to the substance of her testimony indicated that
testimony was so imprecise that even if believed it would
not provide an alibi.

Petitioner has not established that the decision of

the Missouri Court of Appeals with respect to this issue
resulted in a decision that was contrary to, or involved
an unreasonable application of, this clearly established
federal law. James v. Bowersox, 187 F.3d 866, 869 (8th
Cir. 1999). Moreover, the Court finds that the appellate
court’s decision did not result in a decision that was based
on an unreasonable determination of the facts in light of
the evidence presented in the State court proceeding.
Warren v. Smith, 161 F.3d at 360-361.

The Missouri Court of Appeals reasonably applied the

standards set forth in Strickland v. Washington and made
reasonable findings of fact in applying those standards.
Therefore, Petitioner’s § 2254 petition for habeas corpus
relief will be denied with respect to Grounds Twelve,
Seventeen, Twenty-Five and Thirty-Three.

K. GROUND EIGHTEEN

It is not entirely clear what Petitioner is asserting

in Ground Eighteen. There, he claims: “A doctrine
establishing so fundamental a substantive constitutional
standard, as proof beyond a reasonable doubt, of all
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Appendix C

essential elements must also require that the facts of

evidence be present.” See Petition, pp. 6, 12. Petitioner
did present this exact language as one of his claims in his
Rule 29.15 motion. See Petitioner’s Exhibit 22.B., pg. 10.
However, he did not raise this issue on the appeal from
the denial of his Rule 29.15 motion.

A careful reading of Petitioner’s claim suggests that

perhaps he is alleging insufficiency of the evidence to
support his conviction. Be that the case, this issue should
have been raised on his direct appeal to the Missouri
appellate court. However, Petitioner did not challenge the
sufficiency of the evidence in that forum.

In either case, Petitioner has failed to present this

issue to the state courts first. As such, he has procedurally
defaulted this claim. Petitioner has failed to establish the
cause or prejudice necessary to overcome that procedural
default. Additionally, Petitioner has failed to establish
actual innocence. Therefore, this Court is procedurally
barred from reviewing this claim in the instant habeas
proceedings. Smittie v. Lockhart, 843 F.2d 295, 296 (8th
Cir. 1988). Petitioner’s eighteenth ground for habeas relief
will be denied.

L. GROUND TWENTY-THREE

For his twenty-third ground for relief, Petitioner

asserts that he was denied due process and equal
protection due to trial counsel’s representation, which
presented a conflict of interest, due to the fact that the
public defender who represented movant at trial was an
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Appendix C

agent of the State of Missouri, as was the prosecuting

attorney, and Petitioner was charged by the State of
Missouri.

Petitioner raised this issue in his motion for post-

conviction relief which he filed pursuant to Missouri
Supreme Court Rule 29.15. See Petitioner’s Exhibit 22.B.,
pg. 17. However, Petitioner did not present this ground to
the Missouri Court of Appeals either on the direct appeal
from his conviction or on the appeal from the denial of his
Rule 29.15 motion. Thus, he has procedurally defaulted
this claim. He has failed to overcome this procedural
default by establishing either cause or prejudice for his
failure to raise this ground on appeal, or actual innocence.
Thus, this Court is procedurally barred from reviewing
Ground Twenty-Three. Smittie v. Lockhart, 843 F.2d 295,
296 (8th Cir. 1988). Petitioner’s federal petition for habeas
relief should be denied on this ground.

V.
CONCLUSION

For the reasons stated above, the Court finds that

the thirty-three claims raised by Petitioner in the instant
federal petition for habeas corpus relief are either without
merit or procedurally barred. As such, Petitioner’s § 2254
petition for habeas relief should be denied in its entirety.

Accordingly,

IT IS HEREBY ORDERED that the petition of

Christopher Dunn for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254 is DENIED. [4]
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Appendix C

IT IS FURTHER ORDERED that a separate

judgment will be entered this same date.

IT IS FINALLY ORDERED that, for the reasons

stated herein, any motion by Petitioner for a Certificate
of Appealability will be denied for the failure of Petitioner
to make a substantial showing that he has been denied
a constitutional right. 28 U.S.C. §  2253(c)(2). See also,
Tiedeman v. Benson, 122 F.3d 518, 522 (8th Cir. 1997).

/s/
MARYANN L. MEDLER
UNITED STATES MAGISTRATE
JUDGE

Dated this 27th day of March, 2000.