Devereux v. Kempker

             UNITED STATES DISTRICT COURT                            
             EASTERN DISTRICT OF MISSOURI                            
                   EASTERN DIVISION                                  

RAYMOND J. DEVEREUX, JR.            )                                     
                               )                                     
     Petitioner,               )                                     
                               )                                     
v.                             )    No. 4:20-CV-490 RLW              
                               )                                     
JULIE KEMPKER,                      )                                     
                               )                                     
     Respondent.               )                                     

               MEMORANDUM AND ORDER                                  
This matter is before the Court on Petitioner Raymond J. Devereux, Jr.’s pro se Petition 
Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody. (ECF No. 1.)  
Petitioner was formerly incarcerated at the Tipton Correctional Center in the Missouri Department 
of Corrections, but was released from custody during the pendency of this case and placed on 
parole.1 For the following reasons, the Court will deny the Petition.     
                    Procedural History                               
On September 15, 2015, a jury in the Circuit Court of St. Louis County, Missouri, found 
Petitioner guilty of unlawful use of a weapon (Count I), a Class D felony for which he was 
sentenced to a term of three years’ imprisonment; armed criminal action (Count II), an unclassified 
felony for which he was sentenced to a concurrent term of three years’ imprisonment; and first 

1Petitioner was in custody at the time he filed this Petition under § 2254. At some point after June 
9, 2021 (see ECF No. 12 at 3), and after Respondent filed his response to the instant habeas petition, 
Petitioner was released from imprisonment and subsequently discharged from parole. The Court ordered 
Petitioner to show cause why the instant Petition is not moot (ECF No. 18) and ordered Respondent to 
respond. The Court finds Petitioner has established that his underlying conviction has continuing collateral 
consequences, based on his assertion that he has lost the right to receive Social Security benefits as a result 
of the conviction. (ECF No. 19). The Respondent responded that because Petitioner filed this action while 
incarcerated and challenges the underlying conviction, the case is not moot. (ECF No. 21 at 1-2.) Under 
these circumstances, the Court finds the Petition is not moot despite Petitioner’s discharge from parole. See 
Spencer v. Kemna, 523 U.S. 1, 7-9 (1998).                                 
degree assault (Count III), a class B felony for which he was sentenced to a consecutive term of 
five years, for a total of eight years.                                   
Petitioner appealed his conviction to the Missouri Court of Appeals and raised four claims 
of trial court error. The Missouri Court of Appeals affirmed on December 27, 2016, and issued its 
mandate on January 23, 2017. State v. Devereux, No. ED 103698, 506 S.W.3d 393 (Mo. Ct. App. 
2016) (Resp. Ex. C, ECF No. 8-3).                                         
On January 17, 2017, Petitioner filed a pro se post-conviction motion under Missouri 

Supreme Court Rule 29.15. (Resp. Ex. J, ECF No. 8-10 at 30-47.) Appointed counsel obtained an 
extension of time and filed a timely amended Rule 29.15 motion on April 27, 2017. (Id. at 58-84.) 
The post-conviction motion court conducted an evidentiary hearing on October 10, 2017, and 
January 23, 2018 (id. at 117.) The motion court denied Petitioner’s amended 29.15 motion on 
December 11, 2018. (Id. at 135-144.) Petitioner timely appealed. (Id. at 146.) The Missouri Court 
of Appeals denied the appeal on February 11, 2020. See Devereux v. State, ED No. 107509, 592 
S.W.3d 849 (Mo. Ct. App. 2020) (Resp. Ex. I, ECF No. 8-9 at 1-13.)        
Petitioner timely filed the instant Petition for habeas relief in federal court on April 6, 2020 
(ECF No. 1). Respondent filed a response in opposition with supporting exhibits on May 28, 2020 
(ECF No. 8), and Petitioner filed a reply in support. (ECF No. 9).        

                     Grounds Raised                                  
The Petition asserts the following grounds: (1) an actual innocence claim under Schlup v. 
Delo; 513 U.S. 298 (1995);2 (2) a due process claim that the State knowingly used the perjured 

2In McQuiggin v. Perkins, 569 U.S. 383, 386-87 (2013), the Supreme Court held that actual 
innocence, if proved, serves as a gateway through which a habeas petitioner may pass, whether the 
impediment to consideration of the merits of a constitutional claim is a procedural bar, as it was in Schlup 
v. Delo, 513 U.S. 298 at 324, 327 (1995), or expiration of the Antiterrorism and Effective Death Penalty 
Act statute of limitations, as in McQuiggin. The Supreme Court has never held that a prisoner may be 
entitled to habeas relief based on a freestanding actual innocence claim. McQuiggin, 569 U.S. at 392 (citing 
Herrera v. Collins, 506 U.S. 390, 404-05 (1993)).                         
testimony of a witness; (3) Petitioner’s Confrontation Clause rights were violated when the victim 
did not testify; (4) Petitioner was denied compulsory process for obtaining the victim’s testimony 
and relevant records; and (5) the trial court lacked jurisdiction due to defects in the indictment.  
                    Factual Background                               
The Missouri Court of Appeals described the facts of Petitioner’s criminal case as follows: 
     Defendant was charged with assault in the first degree, in violation of 
Section 565.050.1 The State was required to prove Defendant had the purpose of 
attempting to kill or cause serious physical injury to the Victim (Defendant’s 
Mother), and took a substantial step in acting on that purpose. At trial, the state 
presented the following evidence.                                    
     First, the State introduced a recording of the 911 call that partially illustrated 
the encounter. In that call, Victim's grandson told the dispatch officer that his dad, 
Defendant, was "trying to beat my grandma up. He just took a gun from her . . . and 
he's running around with it." Later in the call, the grandson is heard asking his 
grandmother, who was nearby, "[d]id he take the gun?" Grandmother (the Victim) 
replied affirmatively, but also was recorded as saying she "took the clip." The 
grandson reiterated that Defendant has "a gun in his hand," stating "I advise the 
police to shoot to kill." The grandson said he did not know "if there's two clips or 
if he's got bullets down there," but that Defendant "threw a knife at my grandma 
and took the gun from her, and I think he hit her in the face."      

     Second, the State introduced testimony from Officer Bradley Murray, the 
responding officer, wherein Officer Murray recounted the Victim's experiences 
during  the  struggle.  The  Victim  said  when  she  went  downstairs  to  confront 
Defendant, he threw a machete at her. Victim then obtained the gun from upstairs, 
and again confronted him. She and Defendant struggled for control of the gun. 
Victim was able to remove the clip during the struggle, hiding it in her palm, just 
before Defendant wrested the gun away. Victim then fell to the floor, and Defendant 
pointed the gun at her head and pulled the trigger. Thereafter, Victim fled the 
basement.                                                            

     Third, the State presented evidence that the gun used is one that is able to 
house a cartridge in the chamber, even if the clip was not in the gun. 

(Resp. Ex. C, ECF No. 8-3 at 3-4).                                        

                      Legal Standard                                 
Under the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”), federal courts 
review state court decisions under a deferential standard. Owens v. Dormire, 198 F.3d 679, 681 
(8th Cir. 1999).  Federal habeas relief is available to a state prisoner “only on the ground that he is 
in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. 
§ 2254(a); Williams-Bey v. Trickey, 894 F.2d 314, 317 (8th Cir. 1990) (citing § 2254(a)). 
To obtain federal habeas review of a claim raised in a § 2254 petition, the petitioner must 
have first raised the federal constitutional dimensions of the claim in State court in accordance 
with State procedural rules. Duncan v. Henry, 513 U.S. 364 (1995) (per curiam); Beaulieu v. 
Minnesota, 583 F.3d 570, 573 (8th Cir. 2009) (quoted case omitted).  In Missouri, “a claim must 
be presented ‘at each step of the judicial process’ in order to avoid procedural default.”  Jolly v. 

Gammon, 28 F.3d 51, 53 (8th Cir. 1994) (quoting Benson v. State, 611 S.W.2d 538, 541 (Mo. Ct. 
App. 1980)).  If the petitioner failed to properly present the claim in State court, and no adequate 
non-futile remedy is currently available by which he may bring the claim in that forum, the claim 
is deemed procedurally defaulted and cannot be reviewed by the federal habeas court “unless the 
[petitioner] can demonstrate cause for the default and actual prejudice as a result of the alleged 
violation of federal law, or demonstrate that failure to consider the claims will result in a 
fundamental miscarriage of justice.”  Coleman v. Thompson, 501 U.S. 722, 750 (1991); see also 
Martinez v. Ryan, 566 U.S. 1, 10-11 (2012).                               
Where the State court adjudicated a claim on the merits, federal habeas relief can be granted 
on the claim only if the State court 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); or “was based on an unreasonable 
determination of the facts in light of the evidence presented in the State court proceeding,” 28 
U.S.C. § 2254(d)(2).  See Williams v. Taylor, 529 U.S. 362, 379 (2000).  The federal law must be 
clearly established at the time the petitioner’s State conviction became final, and the source of 
doctrine for such law is limited to the United States Supreme Court. Id. at 380-83. 
“A state court decision is ‘contrary to’ clearly established federal law if the state court 
arrives at a conclusion opposite to that reached by the Supreme Court on a question of law, or if 
the state court confronts facts that are materially indistinguishable from relevant Supreme Court 
precedent yet reaches the opposite result.” Zornes v. Bolin, 37 F.4th 1411, 1414 (8th Cir. 2022) 
(quoting Williams, 529 U.S. at 405-06), cert. denied, 143 S. Ct. 411 (2022).  “A decision involves 
an ‘unreasonable application of’ federal law if the state court ‘correctly identifies the governing 
legal standard but either unreasonably applies it to the facts of the particular case or unreasonably 

extends or refuses to extend the legal standard to a new context.’” Id. at 1414-15 (quoting Munt v. 
Grandlienard, 829 F.3d 610, 614 (8th Cir. 2016)). “To demonstrate an unreasonable application, a 
prisoner must show ‘that a state court’s adjudication was not only wrong, but also objectively 
unreasonable, such that “fairminded jurists” could not disagree about the proper resolution.’” Id. 
at 1415 (quoting Smith v. Titus, 958 F.3d 687, 691 (8th Cir. 2020)). Federal habeas courts 
“evaluate the reasonableness of the state court’s ultimate conclusion, not necessarily the reasoning 
used to justify the decision.” Id. (citing Dansby v. Hobbs, 766 F.3d 809, 830 (8th Cir. 2014)). 
Finally,  when  reviewing  whether  a  State  court  decision  involves  an  “unreasonable 
determination of the facts” in light of the evidence presented in the State court proceedings, State 
court findings of basic, primary, or historical facts are presumed correct unless the petitioner rebuts 

the presumption with clear and convincing evidence.  28 U.S.C. § 2254(e)(1); Rice v. Collins, 546 
U.S. 333, 338-39 (2006); Collier v. Norris, 485 F.3d 415, 423 (8th Cir. 2007). Erroneous findings 
of fact do not automatically require the grant of habeas relief, however. Instead, the determination 
of these facts must be unreasonable in light of the evidence of record. Collier, 485 F.3d at 423; 
Weaver v. Bowersox, 241 F.3d 1024, 1030 (8th Cir. 2001).                  
Federal courts are “bound by the AEDPA to exercise only limited and deferential review 
of underlying State court decisions.” Lomholt v. Iowa, 327 F.3d 748, 751 (8th Cir. 2003). “To 
obtain habeas relief from a federal court, a state prisoner must show that the challenged state-court 
ruling  rested  on  ‘an  error  well  understood  and  comprehended  in  existing  law  beyond  any 
possibility for fairminded disagreement.’” Metrish v. Lancaster, 569 U.S. 351, 358 (2013) (quoting 
Harrington v. Richter, 562 U.S. 86, 103 (2011)).  This standard is “difficult to meet.” Id. “The writ 
of habeas corpus is an ‘extraordinary remedy’ that guards only against ‘extreme malfunctions in 
the state criminal justice systems.’” Shinn v. Ramirez, 142 S. Ct. 1718, 1731 (2022) (quoting 
Harrington, 562 U.S. at 102).                                             

                    Evidentiary Hearing                              
A district court may dismiss a habeas petitioner’s motion without an evidentiary hearing if 
“(1) the movant’s allegations, accepted as true, would not entitle the movant to relief, or (2) the 
allegations cannot be accepted as true because they are contradicted by the record, inherently 
incredible, or conclusions rather than statements of fact.” Buster v. United States, 447 F.3d 1130, 
1132 (8th Cir. 2006) (internal quotation marks omitted) (quoting Sanders v. United States, 341 
F.3d 720, 722 (8th Cir. 2003)). Because the Court determines that Petitioner’s sole exhausted 
ground does not warrant habeas relief on its face and the other grounds are procedurally barred, it 
will deny the Petition without an evidentiary hearing.                    
                       Discussion                                    
The record shows Petitioner raised one of his habeas grounds in State court, and that the 

Missouri Court of Appeals denied relief on review of the merits. The Court turns to the merits of 
the claim, exercising limited and deferential review of the underlying State court decisions as 
required by the AEDPA.3                                                   


3See Dretke v. Haley, 541 U.S. 386 (2004) (before a federal habeas court can address whether the 
petitioner’s allegation that the actual innocence exception to the procedural default rule opens the gateway 
through which to present defaulted constitutional claims, it must first address all non-defaulted grounds for 
comparable relief and for cause to excuse default).                       
A.  Ground Three – Confrontation Clause Violation                    
In Ground Three, Petitioner states he “was denied the right to face the witness against him 
at Trial, or a chance to cross-examine the witness before Trial.” (ECF No. 1 at 7.)   
The Missouri Court of Appeals identified and discussed the law and applied it to the facts 
relevant to this claim on direct appeal as follows:                       
     In his second point on appeal, Defendant contends (A) the trial court abused 
its  discretion  in  admitting  Victim's  out-of-court  statements  because  those 
statements were inadmissible hearsay not subject to the excited utterance exception, 
and  (B)  the  trial  court  erred  in  admitting  the  same,  as  the  statements  were 
testimonial and were not made during an ongoing emergency. Defendant thus 
contends the trial court violated his right to a fair trial and to confront the witnesses 
against him, as guaranteed by the Sixth and Fourteenth Amendments to the United 
States Constitution and Article I, sections 10 and 18(a) of the Missouri Constitution. 

     Victim did not testify at trial. The bulk of the evidence the State presented 
came from Officer Murray, the responding officer on the day of the incident (Point 
I, supra). In addition to Officer Murray's personal experiences, the State elicited the 
Officer Murray's testimony about what Victim said to him during the incident. 
Defendant  objected  multiple  times,  both  pre-trial  and  during  the  Officer's 
testimony, but his objections were overruled.                        

     Officer Murray testified that he arrived at the Victim's house two minutes 
after receiving the report from dispatch. He stated that, out of caution, he parked 
his vehicle down the street, called for more officers to support him, and approached 
the residence on foot. He then saw Victim and her grandson standing on the front 
porch, and testified—multiple times—both were visibly shaking and appeared 
"afraid" and "frightened."                                           
     Victim  voluntarily  recounted  the  incident,  stating  that  she  confronted 
Defendant in the basement concerning her medication. Defendant reacted violently 
and aggressively toward her, and she fled after he threw a machete at her. She then 
said she retrieved her firearm from upstairs and went back down to confront 
Defendant again. The two then struggled for control of the gun. Victim managed to 
remove the clip without Defendant's knowledge, but Defendant but Defendant 
ultimately wrested the gun from her. He then knocked her to the ground, pointed 
the gun at her head and pulled the trigger. Victim fled the basement and the house, 
after which she encountered Officer Murray on her front porch.       

     The  Officer  finally  testified  that  the  incident  appeared  to  be  a  "very 
traumatic" event for both Victim and her grandson. Fearing for their safety, the 
Officer  successfully  coaxed  them  away  from  the  house  before  he  ultimately 
confronted and arrested Defendant.                                   
A.  The  Trial  Court  Reasonably  Found  Victim's  Statements  to  be 
  Excited Utterances                                            

Defendant first claims the trial court abused its discretion in admitting 
Victim's  out-of-court  statements  because  those  statements  were  inadmissible 
hearsay not subject to the excited utterance exception. We disagree. 

             Standard of Review                                 
A trial court has broad discretion to admit or exclude evidence at trial. State 
v. Kemp, 212 S.W.3d 135, 145 (Mo. banc 2007). This standard of review compels 
the reversal of a trial court's ruling on the admission of evidence only if the court 
has clearly abused its discretion. Id. That discretion is abused when a ruling is 
clearly against the logic of the circumstances and is so unreasonable as to indicate 
a lack of careful consideration. Id. This court reviews the trial court for prejudice, 
not mere error, and will reverse only if the error was so prejudicial that it deprived 
the defendant of a fair trial. Id. Trial court error is not prejudicial unless there is a 
reasonable probability that the trial court's error affected the outcome of the trial. 
Id. at 145-146.                                                      

                 Analysis                                       
A hearsay statement is any out-of-court statement that is used to prove the 
truth of the matter asserted and that depends on the veracity of the statement for its 
value. Kemp, 212 S.W.3d at 146. The purpose of the hearsay rule is to secure 
trustworthiness of testimonial assertions by affording the opportunity to test the 
credit of the witness. State v. White, 621 S.W.2d 287, 294 (Mo. banc 1981). 

As discussed above, Victim did not testify at trial, but her statements about 
what happened during the incident were introduced through Officer Murray. They 
were used to prove the truth of the matter asserted, namely that Defendant put the 
gun to Victim's head and pulled the trigger. These statements are hearsay, but are 
admissible if they fall under one of the numerous exceptions to the hearsay rule. 
The State contends, and the trial court agreed, that Victim's statements were 
admissible under the excited utterance exception. This exception depends on a 
startling or unusual occurrence sufficient to overcome normal reflection such that 
the ensuing declaration is a spontaneous reaction to the startling event. Kemp, 212 
S.W.3d at 146. When analyzing for an excited utterance, this court looks at: "(1) 
the time between the startling event and the declaration, (2) whether the declaration 
is in response to a question, (3) whether the declaration is self-serving, and (4) the 
declarant's physical and mental condition at the time of the declaration." Id. While 
no one factor necessarily results in automatic exclusion, all should be considered in 
determining whether the declaration was the result of reflective thought. Id. 

Based  on  the  facts  of  this  case,  we  find  Victim's  statements  to  be 
trustworthy. The time between Victim's encounter with Defendant and the time she 
relayed her experience to Officer Murray was short, mere minutes. See White, 621 
S.W.2d at 295 (statement made an hour after an attack admissible while victim's 
emotions were still under the control of the excitement of the event). Officer 
Murray testified that Victim offered her statements concerning the assault without 
prompting. Further, Victim and the Officer spent most of their conversation on the 
porch detailing what weapons Defendant possessed, his potential location within 
the house, and other facts the Officer would need in order to safely enter the house. 
Finally, Officer Murray testified, multiple times, Victim was visibly shaking, and 
that the experience appeared to be "very traumatic" for her. See State v. Burns, 478 
S.W.3d 520, 525 (Mo. App. E.D. 2015) (Victim's statement of incident "made 
under the immediate an uncontrolled domination of her senses" admissible under 
excited utterance exception to hearsay rule.).                       

Nothing in the record indicates the trial court's ruling is clearly against the 
logic of the circumstances or is so unreasonable as to indicate a lack of careful 
consideration.                                                       

B.  Victim’s Statements Were Made During an Ongoing Emergency   

Defendant  also  argues  that  the  trial  court  erred  in  admitting  Victim's 
statements in violation of his 6th Amendment confrontation right, as he avers 
Victim's  statements  were  testimonial  and  were  not  made  during  an  ongoing 
emergency. We, again, disagree.                                      

             Standard of Review                                 
This court normally reviews rulings on the admission or exclusion of 
evidence for abuse of discretion by the trial court. State v. Myers, 248 S.W.3d 19, 
24 (Mo. App. E.D. 2008). However, when an appellant contends that his rights 
under the Confrontation Clause were violated by the admission of evidence, this is 
a question of law that we review de novo. Id.                        

                 Analysis                                       
The Confrontation Clause provides that "[i]n all criminal prosecutions, the 
accused shall enjoy the right . . . to be confronted with the witnesses against him." 
Kemp, 212 S.W.3d at 147 (quoting U.S. Const. Amend. VI). This clause prohibits 
admission of testimonial statements of a witness who did not appear at trial unless 
the witness was unavailable to testify, and the defendant had a prior opportunity for 
cross-examination. Id. However, the United States Supreme Court has reiterated 
that  nontestimonial  statements  are  not  subject  to  the  same  Constitutional 
protections:                                                         

Statements are nontestimonial when made in the course of police 
interrogation under circumstances objectively indicating that the 
primary purpose of the interrogation is to enable police assistance to 
meet  an  ongoing  emergency.  They  are  testimonial  when  the 
circumstances objectively indicate that there is no such ongoing 
emergency, and that the primary purpose of the interrogation is to 
establish or prove past events potentially relevant to later criminal 
prosecution.                                                    
     Id. at 148 (quoting Davis v. Washington, 547 U.S. 813, 822 (2006)). The 
circumstances of the situation must be viewed objectively. Kemp, 212 S.W.3d at 
148.                                                                 

     Here, we find Victim's statements to be nontestimonial. They were clearly 
made under the circumstances objectively indicating Victim's primary purpose was 
to aid Officer Murray in the ongoing emergency. The bulk of Victim's statements 
to Officer Murray focused on what weapons Defendant may or may not have 
possessed, his potential location within the house, and mental state at that time. She 
recounted that the events had just occurred, gave statements in support, and the 
Officer  Murray  determined  that  she  was  "very  traumatized"  by  them.  These 
statements were not solicited by Officer Murray under interrogation, nor did he 
record them at the time she was speaking. Objectively speaking, Officer Murray 
was focused on the safety of the Victim, her grandson, and his own, not on 
interrogating Victim. Thus, Defendant's right to confront was not abridged. 

     Defendant's second point is denied                              

(Resp. Ex. C, ECF No. 8-3 at 6-9).                                        
Respondent argues that the decision of the Missouri Court of Appeals denying this claim 
on the merits is reasonable and entitled to deference.                    
The Missouri Court of Appeals first concluded that the victim’s statements to Officer 
Murray were admissible under Missouri’s evidentiary rules. (Id. at 6-7.) With limited exceptions, 
“[t]he admissibility of evidence at a state trial is a matter of state law and ordinarily will not form 
the basis for federal habeas relief[.]” Clark v. Groose, 16 F.3d 960, 963 (8th Cir. 1994). As a result, 
“[w]hen a petitioner’s federal habeas corpus claim is based upon a theory which can be determined 
as a matter of state law, the federal court is bound by a state court’s interpretation of state law.” 
Id. (citation omitted). A federal court may grant habeas relief, however, when the state court’s 
evidentiary ruling “infringes upon a specific constitutional protection or is so prejudicial that it 
amounts to a denial of due process.” Id. (internal quotation marks and citation omitted). 
Here, petitioner’s federal habeas corpus claim in Ground Three is based upon a theory 
which can be determined as a matter of state law, and the state court’s evidentiary ruling does not 
infringe upon a specific constitutional protection and is not so prejudicial that is amounts to a 
denial of due process. Consequently, this Court is bound by the Missouri Court of Appeals’ 
interpretation of state law. Clark, 16 F.3d at 963.                       
The Court further concludes that the Missouri Court of Appeals did not unreasonably apply 
United States Supreme Court precedent when it rejected Petitioner’s Confrontation Clause claim. 
The appellate court’s finding that the absent witness’s statements were nontestimonial—because 
they were made primarily for the purpose of aiding in an ongoing emergency—is reasonable and 
entitled  to  deference.  The  court  accurately  and  reasonably  applied  relevant  Supreme  Court 

precedent when it concluded that under Davis, nontestimonial statements such as those of the 
victim in this case, while “subject to traditional limitations upon hearsay evidence, [are] not subject 
to the Confrontation Clause.” Davis, 547 U.S. at 821.                     
Ground Three will be denied.                                         
B.  Unexhausted Grounds – Procedural Default                         
Under the doctrine of procedural default, a federal habeas court is barred from considering 
the merits of a claim that was not fairly presented to the state courts unless the petitioner shows 
cause for the default and prejudice resulting therefrom; or that he is actually innocent, such that a 
miscarriage of justice would result by failing to consider the claim. Murphy v. King, 652 F.3d 845, 
849-50 (8th Cir. 2011). To exhaust a federal claim “the petitioner must present the same facts and 

legal theories to the state court that he later presents to the federal courts.” Stephen v. Smith, 963 
F.3d 795, 801 (8th Cir. 2020) (citations omitted).                        
“Out of respect for finality, comity, and the orderly administration of justice, federal courts 
may excuse procedural default only if the prisoner can demonstrate cause for the default and actual 
prejudice as a result of the alleged violation of federal law.” Shinn, 142 S. Ct. at 1733 (citing 
Dretke v. Haley, 541 U.S. 386, 388 (2007), and Coleman, 501 U.S. at 750) (internal quotations 
omitted). To demonstrate cause, the petitioner must “show that some objective factor external to 
the defense impeded counsel’s efforts to comply with the State’s procedural rule.” Murray v. 
Carrier, 477 U.S. 478, 488 (1986). To demonstrate prejudice, the petitioner must show that the 
claimed constitutional violation “worked to his actual and substantial disadvantage.” Id. at 494. A 
showing that the errors at trial created a “possibility of prejudice” is not sufficient. Id. (quoting 
United States v. Frady, 456 U.S. 152, 170 (1982)). “If a prisoner fails to demonstrate cause, the 
court need not address prejudice.” Cagle v. Norris, 474 F.3d 1090, 1099 (8th Cir. 2007). 
With respect to the cause of default, “attorney error is an objective external factor providing 

cause for excusing a procedural default only if that error amounted to a deprivation of the 
constitutional right to counsel.” Davila v. Davis, 582 U.S. 521, 528 (2017) (citations omitted). The 
ineffective assistance of postconviction counsel generally does not constitute cause for procedural 
default because there is no Sixth Amendment right to postconviction counsel. As such, there was 
no deprivation of a constitutional right to counsel. Dorsey v. Vandergriff, 30 F.4th 752, 755 (8th 
Cir. 2022) (citing Thompson, 501 U.S. at 752). The Supreme Court created a narrow exception to 
this rule in Martinez v. Ryan, and held that “a procedural default will not bar a federal habeas court 
from hearing a substantial claim of ineffective assistance at trial if, in the initial-review collateral 
proceeding, there was no counsel or counsel in that proceeding was ineffective.” 566 U.S. at 17.  
The Martinez exception was expanded in Trevino v. Thaler, which held that it applies 

where state law explicitly prohibits prisoners from bringing claims of ineffective assistance of trial 
counsel on direct appeal, and where the “state procedural framework, by reason of its design and 
operation, makes it highly unlikely in a typical case that a defendant will have a meaningful 
opportunity to raise a claim of ineffective assistance of trial counsel on direct appeal.” 569 U.S. 
413, 429 (2013). Under Missouri law, a post-conviction proceeding is the exclusive procedure for 
pursuing an ineffective assistance of counsel claim. Moore-El v. Luebbers, 446 F.3d 890, 896 (8th 
Cir. 2006); Mo. S. Ct. Rule 29.15(a).                                     
A petitioner claiming ineffective assistance of postconviction counsel as the cause for his 
procedural default must demonstrate the following:                        
  (1) the claim of ineffective assistance of trial counsel was a “substantial” claim; 
  (2) the “cause” consisted of there being “no counsel” or only “ineffective” 
  counsel during the state collateral review proceeding; and (3) the state collateral 
  review proceeding was the “initial” review proceeding with respect to the 
  “ineffective-assistance-of-trial-counsel claim.”                   
Marcyniuk v. Payne, 39 F.4th 988, 996 (8th Cir. 2022) (quoted case omitted), cert. denied, No. 22-
6951, __ S. Ct. __, 2023 WL 3937645 (June 12, 2023).                      
C.  Grounds Two, Four, and Five are Defaulted and Procedurally Barred  
Petitioner asserts three grounds for the first time in his federal habeas petition: a due 
process claim that the State knowingly used the perjured testimony of a witness (Ground Two); 
that he was denied compulsory process for obtaining the victim’s testimony and relevant records 
(Ground Four); and that the trial court lacked jurisdiction due to defects in the indictment (Ground 
Five).4                                                                   
To preserve issues for federal habeas review, a state prisoner must fairly present his claims 
to state courts during direct appeal or in post-conviction proceedings. Sweet v. Delo, 125 F.3d 
1144, 1149 (8th Cir. 1997). Failure to raise a claim in a post-conviction appeal is an abandonment 
of a claim. Id. at 1150. Where a prisoner has defaulted his federal claims in state court pursuant to 
an independent and adequate state procedural rule, such as failing to raise claims on appeal, federal 
habeas review of the claims is barred.  Coleman, 501 U.S. at 750.         
As stated above, a petitioner may overcome the procedural bar if he can demonstrate legally 
sufficient cause for the default and actual prejudice resulting from it, or that failure to review the 

4Petitioner raised a version of Grounds Four and Five in his pro se post-conviction Rule 29.15 
motion. (Resp. Ex. J, ECF No. 8-10 at 32-40.) Petitioner did not present either ground on direct appeal 
(Resp. Ex. A, ECF No. 8-1 at 1-38), or in his Amended Rule 29.15 motion, however. (Resp. Ex. J, ECF 
No. 8-10 at 60-67.) Petitioner therefore defaulted these grounds by not presenting them at each step of the 
proceedings. See Sweet, 125 F.3d 1144, 1149 (8th Cir. 1997).              
claim would result in a fundamental miscarriage of justice.  Id.  To satisfy the “cause” requirement, 
Petitioner must show that an “external” impediment prevented him from presenting his claim to 
the state court in a procedurally proper manner.  Id. at 753.             
Petitioner makes no attempt to establish cause and prejudice to overcome his procedural 
default. Instead, he asserts a claim labeled as a “Schlup claim of actual innocence” in Ground One. 
(ECF No. 1 at 4-5.) The Petition offers the following statement as “supporting facts” for Ground 
One: “evidence of actual innocence, that was not av[a]ilable at Trial, for the Jury to hear. The 

Victim[’]s own words, by Affidavit that was entered as evidence at Sentencing. And gave 
testimony at P.C.R. hearing.” (ECF No. 1 at 4.) Petitioner also asserts that the Constitutional 
violations he asserts have “resulted in the conviction of one who is actually innocent and that the 
miscarriage of justice exception is explicitly tied to the Petitioner[‘]s innocence.” (Id. at 22.) 
Based on these statements, the Court finds Petitioner’s Ground One is not a Schlup actual 
innocence claim, but instead is a freestanding claim of actual innocence. As noted above, the 
Supreme Court has never held that a prisoner may be entitled to habeas relief based on a 
freestanding actual innocence claim. McQuiggin v. Perkins, 569 U.S. 383, 392 (2013). The Eighth 
Circuit observed in a death penalty case that if such a claim were recognized, the threshold for the 
claim would be “extraordinarily high,” requiring:                         

more convincing proof than the “gateway” standard that allows for consideration 
of otherwise defaulted constitutional claims upon a showing of actual innocence. 
Thus, on a freestanding claim of actual innocence, it is not sufficient that petitioner 
shows it is more likely than not that no reasonable juror would have found him 
guilty beyond a reasonable doubt.                                    

Feather v. United States, 18 F.4th 982, 986–87 (8th Cir. 2021) (quoting Dansby v. Hobbs, 766 
F.3d 809, 816 (8th Cir. 2014)).                                           
Petitioner asserts in his reply memorandum, however, that he “brings the [procedurally 
defaulted] grounds under a Schlup claim of actual innocence miscarriage of justice exception to 
have his otherwise barred Constitutional claims considered on the merits.” (ECF No. 9 at 3.) 
Therefore,  the  Court  examines  Ground  One,  in  the  first  instance,  as  a  Schlup  actual 
innocence/miscarriage of justice claim.                                   
If proved, actual innocence serves as a gateway through which a procedurally barred claim 
may proceed to review upon the merits. McQuiggin, 569 U.S. at 386 (citing Schlup, 513 U.S. at 
329, and House v. Bell, 547 U.S. 518, 538 (2006)). The Supreme Court has cautioned that “tenable 
actual-innocence  gateway  pleas  are  rare,”  and  “a  petitioner  does  not  meet  the  threshold 

requirement unless he persuades the district court that, in light of the new evidence, no juror, acting 
reasonably, would have voted to find him guilty beyond a reasonable doubt.” McQuiggin, 569 
U.S. at 386 (quoting Schlup, 513 U.S at 329). “[T]he Schlup standard is demanding and permits 
review only in the ‘“extraordinary”’ case.” House, 547 U.S. at 538 (quoting Schlup, 513 U.S. at 
327). See also Schlup, 513 U.S. at 324 (emphasizing that “in the vast majority of cases, claims of 
actual innocence are rarely successful”).                                 
To meet the threshold requirement, a petitioner must present a claim that is “credible.” 
Schlup, 513 U.S. at 324-25. To be considered “credible,” the claim must be supported by “new 
reliable evidence . . . that was not presented at trial.” Id. at 324. Evidence is only “new” in this 
context if it was “not available at the time of trial through the exercise of due diligence.” Kidd v. 

Norman, 651 F.3d 947, 953 (8th Cir. 2011). If the petitioner presents new reliable evidence, then 
“the habeas court must consider all the evidence, old and new, incriminating and exculpatory[.] 
House, 547 U.S. at 538 (internal quotation marks omitted). “Based on this total record” the habeas 
court “must make ‘a probabilistic determination about what reasonable, properly instructed jurors 
would do.’” Id. (quoting Schlup, 315 U.S. at 329). “[A] petitioner does not meet the threshold 
requirement unless he persuades the district court that, in light of the new evidence, no juror, acting 
reasonably, would have voted to find him guilty beyond a reasonable doubt.” Schlup,, 513 U.S. at 
329. “The court’s function is not to make an independent factual determination about what likely 
occurred, but rather to assess the likely impact of the evidence on reasonable jurors.” House, 547 
U.S. at 538.                                                              
To avoid a dismissal of his procedurally barred claims under the McQuiggin/Schlup 
standard, Petitioner must present a credible claim and establish that his evidence regarding the 
victim’s affidavit is “new” and “reliable” under the appropriate standards. If Petitioner can do so, 
then the Court must examine all of the evidence and “make a probabilistic determination about 

what reasonable, properly instructed jurors would do.” House, 547 U.S. at 538. Petitioner must 
“persuade[] the district court that, in light of the new evidence, no juror, acting reasonably, would 
have voted to find him guilty beyond a reasonable doubt.” Schlup,, 513 U.S. at 329. If he does so, 
then the Court may examine his procedurally barred claims.                
Here, Petitioner presents the affidavit of the victim, his mother, Ruth Sanderson, to support 
his actual innocence claim. The Sanderson affidavit cannot be deemed new evidence, as it would 
have been available at trial through the exercise of due diligence. See Kidd, 651 F.3d at 953. The 
Sanderson affidavit has been in the underlying record since the time of Petitioner’s sentencing (Resp. Ex. 
L, ECF No. 8-12 at 340-41), and Ms. Sanderson testified at the evidentiary hearing on Petitioner’s Rule 
29.15 motion. (Resp. Ex. K, ECF No. 8-11 at 36-59). The record indicates Ms. Sanderson would have 
been available to testify at trial, but trial counsel testified at the Rule 29.15 hearing that Petitioner 

specifically instructed counsel not to call the victim at trial on multiple occasions. (Resp. Ex. K, 
ECF No. 8-11 at 7-8.) Nonetheless, defense counsel testified that they and their investigator made 
multiple attempts to contact Ms. Sanderson, including by going to her house two or three times, 
but no one was home. Defense counsel left business cards at Ms. Sanderson’s house, but she never 
called them back. (Id. at 8) The record also indicates Petitioner had been in telephone contact with 
Ms. Sanderson before trial and attempted to dissuade her from testifying. (Resp. Ex. L, ECF No. 
8-12 at 341-42, 277-79.)                                                  
Even if the Sanderson affidavit could be deemed new evidence, the record shows it is not 
reliable. There are significant inconsistencies between the affidavit’s contents and the recording 
of the 911 call played at trial on which Ms. Sanderson’s voice was heard, and the statement she 
gave to law enforcement a few days after the crime, which she later confirmed was accurate but 
also stated she didn’t want Petitioner punished. (Resp. Ex. K, ECF No. 8-11 at 8-9.) The post-

conviction Rule 29.15 motion court “seriously question[ed] [Ms. Sanderson’s] credibility” and 
concluded “[s]he did not provide a viable credible defense.” (Resp. Ex. J, ECF No. 8-10 at 142.) 
The  Missouri  Court  of  Appeals  deferred  to  this  credibility  finding  and  noted  Sanderson’s 
“questionable testimony before the motion court[.]” (Resp. Ex. I, ECF No. 8-9 at 9.) Even if Ms. 
Sanderson’s post-trial statement was presented to the jury, it could be impeached with the 911 call 
recording, her verbal and written statements to the police and to her grandson, who made the 911 
call and was present during the crime, and evidence that Petitioner instructed Ms. Sanderson not 
to testify at trial. For these reasons, the Court concludes the Sanderson affidavit is not reliable.  
Because the Court determines that Petitioner’s evidence is not “new” or reliable, it is 
unnecessary to conduct a further Schlup analysis. Nooner v. Hobbs, 689 F.3d 921, 937 (8th Cir. 

2012). In addition, a reasonable jury could still weigh the evidence presented at trial, including the 
911 call recording and Ms. Sanderson’s subsequent statement to law enforcement, more heavily 
than the post-trial Sanderson affidavit.                                  
Based on this evidence, Petitioner cannot carry his burden to establish that “it is more likely 
than not that no reasonable juror would have convicted him in the light of the new evidence.” 
McQuiggin, 513 U.S. at 386. Nor does Petitioner establish that a miscarriage of justice occurred. 
Petitioner has failed to meet the standard established in McQuiggin for an equitable exception to 
procedural bar of his claims that were not presented in the State courts. As a result, the Court will 
deny Petitioner’s Schlup actual innocence claim in Ground One and will dismiss Grounds Two, 
Four, and Five as procedurally barred.                                    
Finally, to the extent Petitioner asserts a freestanding actual innocence claim in Ground 
One, if such a claim were recognized, the threshold for the claim is “extraordinarily high” and 
requires “more convincing proof than the ‘gateway’ standard that allows for consideration of 
otherwise defaulted constitutional claims upon a showing of actual innocence.” Dansby, 766 F.3d 

at 816. Because Petitioner does not meet the “gateway” standard, he cannot meet the higher 
freestanding actual innocence claim standard.                             
                     Conclusion                                      
For the foregoing reasons, the Court concludes Ground Three of Petitioner Raymond J. 
Devereux, Jr.’s Petition for Writ of Habeas Corpus fails on the merits, Ground One fails to 
establish the actual innocence gateway under McQuiggin to overcome procedural bar and also fails 
as a freestanding actual innocence claim, and Grounds Two, Four, and Five are procedurally 
barred. As such, all of the grounds will be dismissed and denied.         
Accordingly,                                                         
IT IS HEREBY ORDERED that Petitioner Raymond J. Devereux, Jr.’s Petition under 28 

U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (ECF No. 1) is DENIED.  
IT IS FURTHER ORDERED that Petitioner Devereux has not made a substantial 
showing of a denial of a constitutional right, and this Court will not issue a Certificate of 
Appealability.                                                            
 A  separate  Judgment  in  accordance  with this  Memorandum  and  Order will  be  filed 
herewith. 
                                      L. WHITE 
                                  UNITED STATES DISTRICT JUDGE 

Dated this 20th day of June, 2023. 

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