Hosier v. Crews

[[COURTLISTENER_SUBOPINION {"id":"10242366","type":"100trialcourt","part":"other","author":null,"source_field":"html_with_citations"}]]
IN THE UNITED STATES DISTRICT COURT FOR THE                    
                 WESTERN DISTRICT OF MISSOURI                            
                        WESTERN DIVISION                                 
DAVID HOSIER,                    )                                       
                                 )                                       
                    Petitioner,  )                                       
                                 )                                       
             v.                  )   Case No. 4:20-CV-04044-RK           
                                 )                                       
TRAVIS CREWS,                    )                                       
                                 )                                       
                    Respondent.    )                                     
                            ORDER                                        
    Petitioner  David  Hosier,  a  convicted  state  prisoner  confined  in  the  Jefferson  City 
Correctional Center, has filed this federal petition for writ of habeas corpus pursuant to
28 U.S.C. 
§ 2254
.  For the reasons set forth below, this petition is DENIED, and a certificate of appealability 
is DENIED.1                                                               
I.   Statement of Facts                                                   
    Petitioner does not challenge the sufficiency of the evidence.  Relevant to Petitioner’s 
claims are the following facts:2                                          
    The bodies of Angela Gilpin (Victim) and Rodney Gilpin (Husband) were found in the 
hallway  of  their  apartment  building  on  September  28,  2009.3     The  Jefferson  City  Police 
Department (JCPD) found 9-millimeter shell casings in the foyer and in the apartment.  An autopsy 
conducted the next day revealed that Victim died from gunshot wounds to the head and torso, and 
Husband died from gunshot wounds to the chest.  Victim was wearing her purse, which contained 
an application for a protective order from Petitioner.  The application stated Victim and Petitioner 
were “ex-lovers, he knows everywhere i [sic] go, who i [sic] go with, who comes to my home and 

    1  On review of the record, Respondent’s position is found persuasive.  Portions of Respondent’s 
brief are adopted without further citation.                               
    2 “[F]ederal habeas courts must make as the starting point of their analysis the state courts’ 
determinations of fact . . . .”  Williams v. Taylor,
529 U.S. 362, 387
(2000).  “[A] determination of a factual 
issue made by a [s]tate court shall be presumed to be correct.  The applicant shall have the burden of 
rebutting the presumption of correctness by clear and convincing evidence.”
28 U.S.C. § 2254
(e)(1).  In 
this case, Petitioner fails to rebut any of the state court’s determination of the facts with clear and convincing 
evidence.  Accordingly, the facts are drawn in large part from the opinion of the Missouri Supreme Court 
on direct appeal without further citation.  State v. Hosier,
454 S.W.3d 883
(Mo. banc 2015). 
    3  Although police found two victims, the Missouri Supreme Court noted the case stems only from 
charges brought against Petitioner for Victim’s death.                    
is harassing me calling JCPD for no reason.”  She further wrote “he stalkes [sic] me every day, has 
called JCPD on me Sat. Monday.”  She also indicated she was afraid because Petitioner had a 
violent history with an ex-wife.  Victim signed the form under penalty of perjury.  On a separate 
form used for obtaining service, she indicated Petitioner had “lots of firearms.”  Victim applied 
for the order of protection two weeks before the murder, and a hearing was set for four days before 
the murder.  The record does not indicate whether the hearing was held; however, Petitioner’s 
landlord testified a sheriff’s deputy attempted to serve Petitioner with process but Petitioner was 
out of town.                                                              
    During the investigation, JCPD learned that Petitioner and Victim had been involved in an 
“on again, off again” romantic relationship that Victim had ended when she reconciled with 
Husband during the month before the murders of September 28, 2009.  The apartment building 
was locked, and there were no signs of forcible entry.  In the hours after the deaths were discovered, 
JCPD spoke with various people who knew Victim, Husband, and Petitioner, including their 
landlord, two neighbors, and Petitioner’s former employer.  The landlord informed JCPD that 
Petitioner’s apartment overlooked Victim’s apartment, and that Victim had requested a new 
apartment because she no longer wanted to live near Petitioner.  The landlord provided a copy of 
a letter Victim had written to him stating she had filed for a restraining order against Petitioner and 
she was afraid because she did not know what Petitioner would “do next.”   
    At trial, a redacted copy of the letter was admitted, as follows:    
         Dear Dennis,                                                    
         This is Angela Gilpin, 1100 W. High apt. 2.  I am writing you ,to inquire as 
    to weather you may have any other apartment rentals anywhere else in town.  I can 
    no longer live next door to Dave Hosier.  . . . I have gone to the Court House and 
    filled for a restraining order. . . .                                
         Anyway, If you have anything else, I would be interested in looking.  I have 
    liked my apartment, and renting from you.  I’m sorry for all the B.S.  Believe me, 
    he scares me.  I don’t know what he will do next.                    
                                            Sincerely,                   
                                                 Angie.                  

State v. Hosier,
454 S.W.3d 883
, 898 n.8 (Mo. banc 2015) (reproduced as it appeared in record).  
The landlord also provided police with a criminal background check indicating Petitioner had been 
convicted of assault and battery in Indiana.  The landlord added he recently told Petitioner that he 
was  no  longer  permitted  to  enter  Victim’s  apartment  building  because  Victim  complained 
Petitioner had entered her apartment without permission.4  The landlord also asked Petitioner to 
move out by the end of September because of the growing tension.          
    JCPD also contacted a neighbor who had socialized with Victim the night before her death.  
Petitioner had left several voice messages on the neighbor’s cell phone that night that were 
threatening toward Victim.  In one message, Petitioner stated that he was going to “f****** finish 
it.  I’m tired of the s***.  You don’t believe me.  I’m tired of the s***.”  Hosier,
454 S.W.3d at 
890
(asterisks in original).  On another occasion after Petitioner and Victim broke up, Petitioner 
told this neighbor that if he could not have Victim, no one could.        
    A second neighbor told JCPD that Petitioner had called her the night before the murders to 
say he had left certain possessions on her car in case something happened.  He also told her he was 
going to “eliminate his problems.”  The second neighbor led JCPD to her car, where they found a 
note and a set of keys.  The note was from Petitioner and instructed the neighbor to call Petitioner’s 
sister if anything happened to him.  Petitioner also asked her to take care of his possessions in a 
storage facility.  The neighbor told police that Petitioner had previously stated Victim had “f***** 
him over” and he was going to “f*** her over.”
Id.
(asterisks in original).  JCPD also spoke with 
Petitioner’s former employer.  He told them Petitioner had been “let go” because Petitioner had 
been harassing and stalking Victim, who had been a frequent customer.     
    In the hours immediately following the murders, there was no response at Petitioner’s 
apartment and his car was not in its usual parking spot.  Relying on information gathered from the 
landlord, the neighbor with the threatening voicemails, and Petitioner’s former employer, Missouri 
authorities applied for a search warrant for Petitioner’s apartment.  After obtaining the search 
warrant for Petitioner’s apartment and while executing it, police found 9-millimeter ammunition 
and an empty box of 9-millimeter shells, as well as the schematic for a 9-millimeter STEN machine 
gun (“basically a blueprint on how to make a submachine gun”).            
    Law enforcement also applied for a cell phone ping order to determine Petitioner’s location 
when they applied for the search warrant.  The application included an affidavit in which the 
swearing officer stated that Petitioner “had been identified as the primary suspect in the homicide 
investigation” and the location information was “essential to obtain key evidence relevant to the 
ongoing criminal investigation.”  The ping order allowed police to determine Petitioner’s location 

    4  The Missouri Supreme Court noted Petitioner used to have access to Victim’s building to do odd 
jobs.                                                                     
in real time based on the location of his cell phone.                     
    Executing  the  ping  order,  JCPD  determined  Petitioner  was  traveling  south  through 
Oklahoma.  They alerted law enforcement officials in Oklahoma that a “wanted car and person” 
were in the area.  An Oklahoma police officer spotted Petitioner’s car and activated his emergency 
lights to pull him over.  Petitioner did not stop and led police on a “moderate speed chase,” evading 
one roadblock before pulling over.  When Petitioner eventually stopped, he exited his car, saying, 
“Shoot me, and get it over with” or “end it.”  Police were able to put him in handcuffs and found 
a knife on his body.  In plain view in the car, police saw a bulletproof vest, gun, and pistol holder.  
    Oklahoma authorities applied for a search warrant for Petitioner’s car.  In the application, 
the swearing officer stated he was alerted to Petitioner’s presence in Oklahoma by JCPD and that 
JCPD had identified Petitioner as the primary suspect in the homicide investigation based on 
interviews with the neighbors.  The application stated the police were aware Petitioner was in 
Oklahoma based on the ping order.  The swearing officer stated Petitioner had violated state law 
by illegally possessing a firearm and failing to yield to police lights and sirens.  
    In searching the car pursuant to the Oklahoma warrant, police recovered two cell phones, 
a knife next to the driver’s seat, a bulletproof vest, 400 rounds of ammunition, and 15 firearms.  
One of the firearms was an unloaded STEN machine gun that was capable of firing 9-millimeter 
ammunition.  It was the only gun in the car that was not in a bag and was later determined to be 
the murder weapon.                                                        
    In addition, police also found two notes.  One note had Victim’s vehicle information 
written on it.  The other note offered incriminating evidence that Petitioner had harmed someone.  
It stated:                                                                
    If you are going with someone do not lie to them, do not play games with them, do 
    not f*** them over by telling other people things that are not true, do not blame 
    them for things that they have not done.  Be honest with them and tell them if there 
    is something wrong.  If you do not this could happen to YOU!!  People do not like 
    being f***** with, and after so much s*** they can go off the deap [sic] end!!  Had 
    to [sic] much s***!!!                                                

    Petitioner  was  charged  with  first-degree  murder,  armed  criminal  action,  first-degree 
burglary, and unlawful possession of a firearm by a felon.  The jury found Petitioner guilty on all 
counts.                                                                   
    During the penalty phase of the trial, the government presented evidence that Petitioner 
had assaulted his ex-wife and also was convicted of assault and battery for handcuffing and beating 
another ex-girlfriend until she was unconscious.  Additionally, there was evidence that Petitioner 
had threatened other people before the murder.  Petitioner presented mitigating evidence from his 
mother, sister, pastor, and ex-wife.                                      
    The  jury  recommended  a  death  sentence  after  finding  two  statutory  aggravating 
circumstances:  (1) that Petitioner had previously been convicted of a serious assault, and (2) that 
Petitioner had murdered Victim while committing another unlawful homicide.  On November 26, 
2013, the trial court sentenced him to death on the murder charge, 15 years in prison for armed 
criminal action, 15 years for burglary, and 7 years for being a felon in possession of a firearm.   
    On February 3, 2015, the Missouri Supreme Court affirmed Petitioner’s conviction on 
direct appeal.  Hosier,
454 S.W.3d 883
.  On December 10, 2019, the Missouri Supreme Court 
affirmed the motion court’s denial of post-conviction relief.  Hosier v. State,
593 S.W.3d 75
(Mo. 
banc 2019).                                                               
    Further facts are set forth as necessary.                            
II.  Standard                                                             
    State prisoners who believe they are incarcerated in violation of the Constitution or laws 
of the United States may file a petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254
.  
Before doing so, petitioners must exhaust their state remedies, as Petitioner has done in part in this 
case.  See Coleman v. Thompson,
501 U.S. 722, 732
(1991).                 
    “[H]abeas corpus is a guard against extreme malfunctions in the state criminal justice 
systems, not a substitute for ordinary error correction through appeal.”  Harrington v. Richter,
562 
U.S. 86, 102-03
(2011) (citation and quotation marks omitted).  This Court’s review of the petition 
for habeas corpus is limited by the Antiterrorism and Effective Death Penalty Act (“AEDPA”),
28 
U.S.C. § 2254
.
Id. at 97
.  AEDPA “bars relitigation [in federal court] of any claim adjudicated on 
the merits in state court, subject only to the exceptions in §§ 2254(d)(1) and (2).”  Harrington,
562 
U.S. at 98
.  Accordingly, a state habeas petitioner is not entitled to relief unless the state court 
proceedings:                                                              
    (1) resulted  in  a  decision  that  is  contrary  to,  or  involved  an  unreasonable 
       application of, clearly established federal law, as determined by the Supreme 
       Court of the United States; or                                    

    (2) resulted in a decision that was based on an unreasonable determination of the 
       facts in light of the evidence presented in the State court proceeding.
28 U.S.C. §§ 2254
(d).                                                     
    As to § 2254(d)(1), a state court violates the “contrary to” clause if it “applies a rule that 
contradicts the governing law set forth” by the Supreme Court or if the state court “confronts a set 
of facts that are materially indistinguishable from a decision of [the] Court and nevertheless arrives 
at a [different] result.”  Williams v. Taylor,
529 U.S. 362, 406
(2000).  A state court violates the 
“unreasonable application” clause of § 2254(d)(1) if it “identifies the correct governing legal rule 
from [the Supreme] Court’s cases but unreasonably applies it to the facts of the particular state 
prisoner’s case.”  Id. at 407.  “It is not enough for us to conclude that, in our independent judgment, 
we would have applied federal law differently from the state court; the state court’s application 
must have been objectively unreasonable.”  Flowers v. Norris,
585 F.3d 413, 417
(8th Cir. 2009) 
(citation omitted).                                                       
    As to § 2254(d)(2), “a petitioner must show that the facts underlying the claim would be 
sufficient to establish by clear and convincing evidence that but for constitutional error, no 
reasonable factfinder would have found the applicant guilty of the underlying offense.”  Perry v. 
Kemna,
356 F.3d 880, 889
(8th Cir. 2004) (internal quotation omitted).  A state court’s factual 
determinations are presumed correct and will stand unless the petitioner rebuts this presumption 
with clear and convincing contrary evidence.
28 U.S.C. § 2254
(e)(1); Grass v. Reitz,
749 F.3d 
738, 743
(8th Cir. 2014).  Additionally, federal courts afford great deference to a state court’s 
credibility findings.  Smulls v. Roper,
535 F.3d 853, 864
(8th Cir. 2008) (en banc). 
III.  Analysis                                                            
    Petitioner raises thirteen grounds for relief.  For the reasons set forth below, Petitioner’s 
claims are denied either because they are procedurally defaulted, or because the Missouri Supreme 
Court did not reach a decision (1) that contradicted or unreasonably applied clearly established 
federal law, or (2) that was based on an unreasonable determination of the facts.  See
28 U.S.C. 
§ 2254
(d).                                                                
 A.  Ground One – Right to Confrontation                                 
    Petitioner contends “multiple pieces of hearsay were admitted” at his trial in violation of 
the Confrontation Clause to  the Sixth Amendment.5  The Missouri Supreme Court reviewed this 

    5  Respondent asserts Petitioner failed to satisfy Rule 2(c) of the Rules Governing Habeas Corpus 
Cases Under Section 2254, inasmuch as Petitioner does not specify “specific, particularized facts which 
entitle him . . . to relief.”  See Adams v. Armontrout,
897 F.2d 332, 333-34
(8th Cir. 1990) (holding that “to 
substantially comply with the Section 2254 Rule 2(c), a petitioner must state specific, particularized facts 
claim and noted its standards of review were de novo as to challenges concerning the Confrontation 
Clause and abuse of discretion as to challenges concerning admission of evidence.  The state 
supreme court then recited background law as to the Confrontation Clause, including Crawford v. 
Washington,
541 U.S. 36, 53-54
(2004), and Davis v. Washington,
547 U.S. 813, 822, 829
(2006), 
and analyzed the merits of the claim as to (1) Victim’s application for an order of protection, and 
(2) statements Victim made to the landlord about Petitioner and the letter she sent the landlord, as 
follows:                                                                  
         At  trial,  the  state  introduced  the  Victim’s  application  for  an  order  of 
    protection against Defendant that was found on her body the night of the murders.  
    Some statements from the application were read to the jury, although it was not 
    published to the jury.  The prosecutor relied on the following statements from the 
    document during his closing argument:  “Ex-lovers.  He knows everywhere I go, 
    who I go with, who comes to my home, and is harassing me, calling JCPD for no 
    reason. . . . He stalks me every day, has called JCPD on me Sat., Monday.” 

         Assuming the statements were inadmissible under the confrontation clause, 
    they are admissible under the forfeiture by wrongdoing doctrine.  This doctrine 
    provides that if the defendant procured the declarant’s absence with the intent of 
    preventing the declarant from testifying against the defendant, then the declarant’s 
    hearsay statements may be admissible.  Giles v. California,
554 U.S. 353
(2008).  
    Giles addresses the intersection of the confrontation clause and the forfeiture by 
    wrongdoing doctrine in the context of abusive relationships:         

         Acts of domestic violence often are intended to dissuade the victim 
         from resorting to outside help, and include conduct designed to 
         prevent  testimony  to  police  officers  or  cooperation  in  criminal 
         prosecutions.  Where such an abusive relationship culminates in 
         murder, the evidence may support a finding that the crime expressed 
         the intent to isolate the victim and to stop her from reporting abuse 
         to the authorities or cooperating with a criminal prosecution – 
         rendering  her  prior  statements  admissible  under  the  forfeiture 
         doctrine.  Earlier abuse, or threats of abuse, intended to dissuade the 
         victim from resorting to outside help would be highly relevant to 

which entitle him or her to habeas corpus relief for each ground specified.”  The petitioner’s “facts must 
consist of sufficient detail to enable the court to determine, from the face of the petition alone, whether the 
petition merits further habeas corpus review.”).  The Court need not resolve this challenge because 
Petitioner is clear that he is seeking relief only to the extent the ground was reviewed by the Missouri 
Supreme Court (Doc. 9 at 47; Doc. 18 at 20-21).  In other words, Petitioner challenges the state court’s 
ruling and does not seek review of defaulted claims.  Thus, this Court proceeds to the merits of the claim 
and reviews the claim to the extent it was raised to the Missouri Supreme Court.  As to any defaulted 
arguments, Petitioner would not be afforded relief under Martinez v. Ryan,
132 S.Ct. 1309, 1315
(2012) 
(set out more fully below) or otherwise because the claim is not substantial and there is no prejudice. 
         this inquiry, as would evidence of ongoing criminal proceedings at 
         which the victim would have been expected to testify.           

    Id. at 377 (emphasis added).                                         

         Shortly  after  Giles  was  decided,  this  Court  applied  the  forfeiture  by 
    wrongdoing doctrine in State v. McLaughlin,
265 S.W.3d 257
(Mo. banc 2008).[6]  
    In McLaughlin, the defendant was on trial for the first-degree murder of his ex-
    girlfriend.  In the course of ending their relationship, the victim had filed for 
    multiple protective orders against the defendant.  At the time of her death, there 
    were pending abuse and burglary charges against him in which she was the 
    complaining witness.  This Court found that the victim’s statements regarding 
    requests  for  police  protection  and  the  defendant’s  harassing  and  threatening 
    conduct towards her was admissible under Giles.
Id. at 272
.  It noted that there was 
    ample evidence that defendant had killed the victim to keep her from testifying, 
    such as the fact that she made the statements while trying to end their relationship 
    and that she had sought various orders of protection.
Id.
at 273 n.10. 

         As in McLaughlin, the forfeiture by wrongdoing doctrine applies in this 
    case.  There was ample evidence from the neighbors, the landlord, and Defendant’s 
    former employer that Defendant had been harassing Victim before her death and 
    that Victim had sought judicial intervention.  While there was not an active order 
    of protection against Defendant, Victim had applied for a protective order, and 
    Defendant  was  not  served  because  he  was  out  of  town.    Under  Giles  and 
    McLaughlin,  Victim’s  statements  were  admissible  under  the  forfeiture  by 
    wrongdoing doctrine as Defendant’s actions were intended to cause Victim to be 
    unavailable to testify.                                              

Hosier,
454 S.W.3d at 897
.                                                
    Petitioner similarly claims statements Victim made to the landlord and the letter she sent 
to the landlord were inadmissible hearsay.  The landlord testified Victim told him Petitioner had 
entered her apartment without her permission, which led the landlord to tell Petitioner he no longer 
had permission to enter Victim’s apartment building.  In the letter, Victim requested a new 
apartment because she was afraid of Petitioner.  The Missouri Supreme Court additionally affirmed 

    6  The  Missouri  Supreme  Court’s adjudication  of the  forfeiture  by  wrongdoing  doctrine in 
McLaughlin was not disturbed on federal habeas review.  See McLaughlin v. Steele,
173 F.Supp.3d 855, 
900-901
(E.D. Mo. Mar. 22, 2016), rev’d and remanded on other grounds, McLaughlin v. Precythe,
9 F.4th 
819
(8th Cir. 2021).                                                      
the trial court as to the admission of this evidence under the Giles forfeiture doctrine.7, 8   
    The crux of Petitioner’s argument is that the state supreme court’s application of Giles was 
erroneous because the State never argued (and the evidence did not support) that the murder 
involved any motivation to prevent Victim from being a witness against Petitioner.  In other words, 
Petitioner claims that for the exception to apply, the intent to prevent testimony as the motivation 
for the murder must be eminently clear.  In response, Respondent argues the record supports the 
state court’s finding that the Giles doctrine indeed applies because the record contained sufficient 
evidence to allow the state court to infer from the record that Petitioner killed Victim with the 
intent to prevent her testimony.  This Court agrees with Respondent that the record contains 
sufficient evidence to allow the state court to infer intent because, inter alia, there was ample 
evidence from the neighbors, the landlord, and Petitioner’s former employer that Petitioner had 
been harassing Victim before her death.  Additionally, key to this case, just two weeks before the 
murder, Victim had sought and obtained an ex parte order of protection in which she swore under 
oath that Petitioner was stalking her daily and he had engaged in acts of vandalism and harassment 
towards herself and her family; a copy of that document was found in Victim’s purse when her 

    7 The Missouri Supreme Court defined testimonial hearsay statements but undertook no analysis as 
to whether any of the statements at bar are non-testimonial.  Instead, the Court assumed without deciding 
that all challenged statements were inadmissible under the Confrontation Clause.  This Court agrees with 
Respondent that the letter to the landlord was not testimonial, taking that piece of evidence outside the 
purview of the Confrontation Clause.  See Crawford,
541 U.S. at 51
(testimony is a “solemn declaration or 
affirmation made for the purposes of establishing or proving some fact.”); United States v. Wright,
536 F.3d 
819, 823
(8th Cir. 2008) (“statements to friends and neighbors about abuse and intimidation . . . are not 
testimonial”) (quoting Giles,
554 U.S. at 376
).  The record reflects the letter was not in response to police 
questioning, not written in a coercive atmosphere, not addressed to law enforcement or any other public 
authority, and the declarant had no reason to believe it would become part of a legal proceeding.  
Nevertheless, the state court correctly ruled that, assuming the letter is testimonial, its admission (as well 
as that of the ex parte application) falls squarely within the forfeiture by wrongdoing exception.   
    8 The Missouri Supreme Court cited “ample” evidence that Petitioner killed Victim to keep her 
from testifying, as excerpted above.  Respondent notes that courts outside of Missouri and the Eighth Circuit 
have applied a preponderance-of-the-evidence standard in determining whether to apply the forfeiture by 
wrongdoing exception and that the Eighth Circuit does not appear to have addressed the appropriate 
standard that applies to the Confrontation Clause exception.  See, e.g., Carlson v. Attorney Gen. of Cal.,
791 F.3d 1003, 1005
(9th Cir. 2015); United States v. Johnson,
767 F.3d 815, 822
(9th Cir. 2014); United 
States v. Dinkins,
691 F.3d 358, 383
(4th Cir. 2012).  For the reasons set forth here, assuming the 
preponderance standard applied here, it was more than met.  More to the point, however, Petitioner cannot 
show the state court’s fact finding is rebutted by clear and convincing evidence or its decision runs afoul of 
clearly established federal law.                                          
body was found.9  See Carlson v. Attorney Gen. of Cal.,
791 F.3d 1003, 1005
(9th Cir. 2015) 
(exploring meaning of “conduct designed to prevent a witness from testifying,” and holding 
admission of challenged statements was not an objectively unreasonable application of Supreme 
Court precedent because AEDPA “demands that state-court decisions be given the benefit of the 
doubt,” and because the trial court could have reasonably inferred from the record that petitioner 
directly participated in securing the victim’s and witness’s absence); United States v. Cazares,
788 
F.3d 956, 974-975
(9th Cir. 2015) (district court properly applied forfeiture doctrine; noting federal 
courts have sought to effect the purpose of the doctrine by broadly construing the elements required 
for its application, and the government is not required to show a defendant’s “sole purpose was to 
silence the declarant”).                                                  
    The Missouri Supreme Court did not undertake analysis assuming trial court error.  Ex 
gratia, even assuming the record did not support the finding of sufficient evidence to invoke the 
forfeiture by wrongdoing exception, Petitioner would not be entitled to federal habeas relief on 
Ground One.  The United States Supreme Court has held this Court’s review is for actual prejudice: 
    For reasons of finality, comity, and federalism, habeas petitioners are not entitled 
    to habeas relief based on trial error unless they can establish that it resulted in actual 
    prejudice.  Under this test, relief is proper only if the federal court has grave doubt 
    about whether a trial error of federal law had substantial and injurious effect or 
    influence in determining the jury’s verdict.  There must be more than a reasonable 
    possibility that the error was harmful.  The [relevant] standard reflects the view that 
    a State is not to be put to the arduous task of retrying a defendant based on mere 
    speculation that the defendant was prejudiced by trial error; the court must find that 
    the defendant was actually prejudiced by the error.                  

Davis v. Ayala,
576 U.S. 257, 267-68
(2015) (cleaned up).                 
    Here, the Court has no grave doubt that admission of any of the challenged evidence had a 
“substantial and injurious effect or influence in determining the jury’s verdict,” even assuming 
erroneous admission.  As noted above, evidence at trial included admission of Petitioner’s 
statements threatening Victim’s life.  Petitioner told a friend if he could not have Victim, then 

    9 The evidence supporting such a finding was further detailed at length in Respondent’s brief to the 
Missouri Supreme Court on direct appeal and included: Petitioner was fired from his job for harassing 
Victim; Petitioner threatened Victim in phone calls to friends; Victim stated that Petitioner watched what 
she did and who came and went to her home; Victim complained that Petitioner had entered her apartment 
without permission and that she was forced to change her deadbolt lock; Petitioner made false police reports 
for the purposes of harassing her (a fact later confirmed by police); and two weeks before the murders, 
Petitioner told a friend he was upset because of a restraining order and an eviction notice.  (Docs. 13 at 58; 
13-4 at 95-99.)                                                           
nobody would have Victim.  He stated, in reference to his difficulties with Victim, he was going 
to “eliminate his problems.”  After the murder, Petitioner was apprehended fleeing from the scene, 
which is evidence of consciousness of guilt.  When Petitioner was apprehended, he asked law 
enforcement to shoot him, which is additional evidence of consciousness of guilt.  Petitioner was 
apprehended with an arsenal of weapons, including the murder weapon.      
    In support of a finding that Petitioner was apprehended with the murder weapon, the Court 
notes nine spent 9-millimeter shell cases were recovered from the crime scene near Victim’s body.  
Those spent cases were compared to Petitioner’s STEN submachine gun, and the Missouri State 
Highway Patrol expert firearms examiner determined the firing pin impressions on the cartridge 
cases were consistent with the STEN submachine gun.  A photograph of the comparison process 
was admitted into evidence and clearly shows an agreement in the physical markings.  The expert 
also determined the extractor marks on at least four cartridge cases indicated the spent cartridge 
cases at Victim’s apartment had been extracted from Petitioner’s STEN submachine gun.  The 
expert testified how the photograph from the comparison process showed an agreement in the 
physical extractor markings.  The expert testified that a tenth cartridge case later submitted by 
police for examination contained sufficient individual characteristics to confirm it had been ejected 
from that particular submachine gun.                                      
    In addition to all of this testimony, much of the letter to the landlord was cumulative to 
other evidence presented, including the landlord’s testimony that he evicted Petitioner because of 
Petitioner’s conviction and because of his harassment to Victim.  Petitioner’s friend testified to the 
same information.  Additionally, the statements read by the prosecutor in closing from the ex parte 
application were also cumulative to other testimony at trial, including testimony about how 
Petitioner watched Victim’s entrance.  See Doan v. Carter,
548 F.3d 449, 459
(6th Cir. 2008) (the 
jury’s guilty verdict is “surely unattributable” to the admission of the affidavit, even if it was 
inadmissible testimonial hearsay, because the affidavit was merely cumulative of other evidence 
admitted against defendant” (citation omitted); Jensen v. Clements,
800 F.3d 892, 892-908
(7th 
Cir. 2015) (in case where trial was held pre-Giles and court allowed evidence that unequivocally 
violated Giles, habeas relief was warranted because case “was no slam dunk” and “evidence was 
all circumstantial” and there was significant evidence in favor of the theory that the wife had taken 
her own life); James v. Marshall, CV 06-3399-CAS(E),
2008 WL 4601238
, at *16 (C.D. Cal. Aug. 
13, 2008) (habeas relief warranted where (1) “[n]othing in the record shows the victim believed 
that she or anyone else was still in danger of injury or further injury [at the time the statements 
were made]. . . and there was no ongoing emergency in the sense of a perpetrator being unknown 
or still at large”; (2) respondent did not contend, and the record did not show, that petitioner killed 
his wife to prevent her from testifying against him; and (3) the jury struggled to reach a verdict).   
    Here, because there is weighty evidence independent of the unconfronted statements, the 
Court does not have grave doubts about whether an assumed trial error had a substantial and 
injurious effect or influence in determining the jury’s verdict.  In turn, the Court finds the state 
appellate court correctly applied controlling United States Supreme Court precedent (Giles) in 
resolving Petitioner’s claim concerning the Confrontation Clause.  Even if there was error by the 
trial court, however, there was no actual prejudice.                      
    Ground One is denied.                                                
 B.  Ground Two – Ineffective Assistance of Counsel:  Prior Conviction   
    Petitioner next claims trial counsel were ineffective for not stipulating during the guilt 
phase to his prior conviction even though trial counsel explained they did not stipulate to the 
conviction because they did not want the jury to be “surprised” during the penalty phase.10 
    To prevail on a claim of ineffective assistance of counsel, a habeas petitioner must show:  
(1) “counsel’s representation fell below an objective standard of reasonableness[;]” and (2) “the 
deficient performance prejudiced the defense.”  Strickland v. Washington,
466 U.S. 668, 687, 688
(1984).  “The first prong requires a showing ‘that counsel made errors so serious that counsel was 
not functioning as the “‘counsel’” guaranteed the defendant by the Sixth Amendment.’”  White v. 
Dingle,
757 F.3d 750, 752
(8th Cir. 2014) (quoting Strickland,
466 U.S. at 687
).  “The second 
prong  requires  a  showing  that  ‘there  is  a  reasonable  probability  that,  but  for  counsel’s 
unprofessional errors, the result of the proceeding would have been different.’”
Id.
at 753 (quoting 
Strickland,
466 U.S. at 694
).                                             
    “[W]hen reviewing an ineffective-assistance-of-counsel claim, ‘a court must indulge a 
strong presumption that counsel’s conduct falls within the wide range of reasonable professional 

    10 Respondent again claims Petitioner’s claim violates Rule 2(c).   The Court need not resolve this 
challenge because, again, Petitioner’s reply brief makes clear that the Missouri Supreme Court reviewed 
this ground (Doc. 18 at 35) and that Petitioner is challenging the state court’s ruling and not seeking review 
of defaulted claims.  Thus, this Court reviews the claim on its merits to the extent it was raised to the 
Missouri Supreme Court.  As to any defaulted arguments, Petitioner would not be afforded relief under 
Martinez,
132 S.Ct. at 1315
(set out more fully below) or otherwise because the claim is not substantial and 
there is no prejudice, actual or otherwise, as detailed throughout this order. 
assistance.’”  Woods v. Donald,
575 U.S. 312, 315
(2015) (quoting Strickland,
466 U.S. at 689
).  
“Establishing that a state court’s application of Strickland was unreasonable under § 2254(d) is all 
the more difficult.”  Harrington,
562 U.S. at 105
.  “The standards created by Strickland and 
§ 2254(d) are both ‘highly deferential,’ and when the two apply in tandem, review is ‘doubly’ so.” 
Id.  (internal citations omitted).  To grant relief under § 2254, this Court must conclude that the 
state court unreasonably applied the Strickland test or that, in reaching its conclusion regarding 
the performance of Petitioner’s attorneys, it made unreasonable factual conclusions.  Gabaree v. 
Steele,
792 F.3d 991, 996
(8th Cir. 2015) (citing Harrington,
562 U.S. at 131
) (additional citation 
omitted).                                                                 
    In analyzing this ineffective-assistance claim on the merits, the Missouri Supreme Court 
noted the Strickland standard and reasoned as follows:                    
         Hosier argues trial counsel was ineffective for failing to stipulate to the prior 
    felony conviction, which – under Old Chief v. United States,
519 U.S. 172
(1997) 
    –  would  have  prevented  the  jury  from  hearing  the  name  and  surrounding 
    circumstances of the conviction underlying the felon-in-possession charge during 
    the guilt phase of the trial.  The state was willing to stipulate to the 1993 Indiana 
    felony, but defense counsel declined to do so.  As a result, the state was allowed to 
    introduce during the guilt phase documents showing both the fact of the 1993 
    conviction and the circumstances surrounding that conviction.  Hosier argues this 
    evidence  was  highly  prejudicial  because  the  facts  underlying  that  conviction 
    involved a violent assault of a former romantic partner and Hosier was on trial for 
    murdering another former romantic partner.  Hosier asserts there was no strategic 
    reason for counsel not to stipulate to the 1993 felony conviction and every reason 
    to do so in order to keep this information from the jury during the guilt phase as 
    required by Old Chief.                                               

         At trial, Hosier was represented by Counsel Don Catlett, who previously 
    had tried nine capital cases as a criminal defense attorney, and Counsel Janice 
    Zembles, who had worked as the District Defender in the capital trial office of the 
    Missouri Public Defender for 13 years.  At the evidentiary hearing, Counsel 
    Zembles testified that, although the prosecutor was willing to stipulate to the prior 
    felony conviction, she did not enter into a stipulation because she did not want the 
    jury to be surprised about the facts of the 1993 conviction when it inevitably learned 
    of them during the penalty phase.  Counsel Zembles testified that, in her experience, 
    jurors in death penalty cases responded negatively to information introduced during 
    the penalty phase that they believe had been withheld from them during the guilt 
    phase. Counsel Zembles believed [Petitioner’s former girlfriend, Nancy] Marshall 
    would testify at the penalty phase because her name was on the witness list and was 
    in  a  position  to  offer  relevant  and  admissible  evidence  concerning  the  1993 
    conviction.  On balance, Counsel Zembles believed the mitigating nature of the 
    language in the 1993 judgment recommending psychiatric treatment outweighed 
    any prejudice that would ensue from the state offering that judgment into evidence. 

         The motion court found defense counsel’s decision not to stipulate to the 
    fact of the 1993 Indiana conviction in the guilt phase to preclude angering the jury 
    in the penalty phase when it inevitably learned of the circumstances surrounding 
    that conviction was a reasonable trial strategy.  This finding is not clearly erroneous.  
    [Footnote omitted.]                                                  

         Counsel Zembles reasonably believed that there would likely be a penalty 
    phase of the trial – i.e., she believed Hosier likely would be found guilty of first-
    degree  murder  –  and  that  Marshall  would  testify  about  the  circumstances 
    surrounding the 1993 Indiana conviction during that penalty phase.  Her experience 
    with juries learning in a penalty phase facts that they believed had been withheld 
    from them in the guilt phase informed her strategic decision to get the facts 
    surrounding the 1993 Indiana conviction out sooner rather than later.  This was a 
    reasonable trial strategy for defense counsel to make in light of the facts and 
    circumstances as they appeared to her at the time this decision was made. 

         Old Chief is not to the contrary.  Old Chief held a trial court abuses its 
    discretion by not accepting a defendant’s offer to stipulate to the fact of a prior 
    conviction when the name and nature of the conviction raises the risk of unfair 
    prejudice.  Old Chief,
519 U.S. at 174
.  But nowhere does [Old Chief], or any other 
    [case], impose a duty on a criminal defendant’s counsel to stipulate to a past felony 
    notwithstanding defense counsel’s reasonable trial strategy to the contrary.[11]   

Hosier, 593 S.W.3d at 82-83.                                              
    Here, Petitioner appears to argue (1) the Missouri Supreme Court’s opinion was contrary 
to, or an unreasonable application of, clearly established Supreme Court precedent, and (2) the 
opinion was based on an unreasonable determination of the facts.          
    As to the claim concerning established precedent, Petitioner makes clear in his reply brief 
that his challenge relates to Strickland, Wiggins v. Smith,
539 U.S. 510
(2003), Old Chief, and 
Michelson v. United States,
335 U.S. 469
(1948).  After review, this Court finds meritless 
Petitioner’s contention that the state court’s ruling was contrary to established precedent.  First, 
the Missouri Supreme Court identified and correctly applied Strickland.  Second, Petitioner did 
not cite Wiggins on appeal to the Missouri Supreme Court concerning this claim.  Regardless, the 

    11 The Missouri Supreme Court additionally determined that introduction of the evidence did not 
violate Missouri’s pattern jury instruction, MAI-CR 3d 331.28, and that defense counsel’s decision not to 
stipulate to a prior conviction was a reasonable matter of trial strategy. 
state court’s opinion does not run afoul of Wiggins, in which the United States Supreme Court 
found ineffective assistance of counsel due to the attorneys’ inadequate investigation and decision 
not to introduce mitigating evidence of the petitioner’s background.
539 U.S. 510
.  Third, the state 
court’s opinion does not conflict with Old Chief.  Old Chief discussed whether the admission of 
evidence was an abuse of discretion under Federal Rule of Evidence 403, not whether a trial was 
fundamentally unfair by due process standards.
519 U.S. 172
.  Even notwithstanding this 
procedural difference, the state court’s ruling does not conflict with Old Chief, which held reversal 
is required where (1) the government spurns a defendant’s offer to concede a prior judgment, 
(2) the full judgment record is admitted over the defendant’s objection, (3) the name or nature of 
the prior offense raises the risk of a verdict tainted by improper considerations, and (4) the purpose 
of the evidence is solely to prove the element of prior conviction.  As the Missouri Supreme Court 
pointed out, then, nowhere does Old Chief impose a duty on counsel to stipulate to a past felony 
conviction, notwithstanding counsel’s reasonable trial strategy to the contrary.  Fourth, Petitioner’s 
reliance on Michelson is unavailing both because he did not raise the argument to the state courts 
and because the case is not on point.  There, the trial court had allowed the government to ask four 
witnesses whether they knew the defendant had been “arrested for stolen goods.”  In the 1948 case, 
the Michelson Court held on direct appeal that generally, evidence of a defendant’s bad character 
is not admissible to provide a defendant’s propensity to commit the offense charged.
335 U.S. at 
476
.  Michelson is thus procedurally and factually inapposite.            
    Petitioner additionally argues the state  court opinion was based on  an unreasonable 
determination of the facts.  Petitioner represents that Catlett testified “that there was no strategic 
reason for not stipulating to the prior conviction nor the two motions in limine filed by the defense 
that sought to keep this information from the jury, as well as the inclusion of this issue in the 
motion for a new trial.”  (Doc. 9 at 62.)  In fact, the record indicates that the pertinent testimony 
was Catlett’s response to the question whether he had a strategic reason not to stipulate: “Not that 
I can think of.”  (Doc. 13-7 at 57.)  Catlett also testified he did not recall any of the “specifics of 
the discussion” with the prosecutor before the exhibit was admitted; instead, he deferred to the 
record.  (Id.)  In contrast, Zembles testified as to the reasons for stipulating to the admission of the 
exhibit, as detailed above in the Missouri Supreme Court’s opinion.  “The deference owed to the 
state trial court pursuant to § 2254(e)(1) includes deference to its credibility determinations.”  
Smulls,
535 F.3d at 864
.  “A federal court can only grant habeas relief if the state court’s credibility 
determinations were objectively unreasonable based on the record.”  Id.; see also Graham v. 
Solem,
728 F.2d 1533, 1540
(8th Cir. 1984) (“In the process of finding the underlying facts, 
credibility determinations are left for the state courts to decide; we are not permitted to substitute 
our judgment as to the credibility of witnesses for that of the state court.”).  Petitioner offers no 
basis on which this Court could find that it was objectively unreasonable for the state court to 
credit Zembles’ testimony regarding the stipulation, nor has Petitioner offered clear or convincing 
evidence to rebut the presumption of correctness of the state court’s factual findings. 
    Moreover, even assuming Petitioner could establish deficient performance, the Missouri 
Supreme Court found, and this Court agrees, that Petitioner has not established prejudice.  In 
finding Petitioner could not show prejudice, the state court ruled as follows: 
         Even if Hosier had been able to show that defense counsel’s performance 
    was constitutionally defective for failing to stipulate to the 1993 Indiana felony, his 
    ineffective assistance claim would fail, nevertheless, because Hosier failed to show 
    any prejudice resulted.  Hosier argues the evidence relating to the prior felony 
    conviction allowed the jury to make an improper inference that he had a propensity 
    for violence such as that which resulted in Victim’s death.  He argues allowing the 
    jury to hear this evidence was especially damaging because the case against him 
    rested entirely on circumstantial evidence.                          

         These arguments fail for two reasons.  First, the Court is not convinced – 
    based on nothing other than Hosier’s speculation – that the jury made an improper 
    use of evidence concerning the 1993 conviction (i.e., propensity) rather than a 
    proper use of that evidence.  Second, the Court is not convinced the trial record 
    supports a reasonable likelihood that the jury would not have found Hosier guilty 
    of first-degree murder if they had heard only that Hosier had been convicted 
    previously of an unspecified and unexplained felony.  Instead, the record shows the 
    jury’s guilty verdict was supported by a wide range of inculpatory evidence, 
    including evidence regarding Hosier’s past relationship with Victim, Victim’s fear 
    that Hosier might kill or harm her and her husband, Victim’s application for an 
    order of protection against Hosier based on those fears, Hosier’s flight shortly after 
    the killings, Hosier’s many inculpatory statements (including a note explaining his 
    motive found in his vehicle), and the arsenal of weapons (including one determined 
    to be the murder weapon) found in his possession at the time he was arrested.  
    Extracting from this considerable array of evidence the circumstances surrounding 
    Hosier’s  1993  Indiana  conviction  falls  well  short  of  creating  a  reasonable 
    probability that he would not have been found guilty on the first-degree murder 
    charge.                                                              

Hosier, 593 S.W.3d at 82.                                                 
    Given the record and a thorough Strickland-based analysis, the state court’s determinations 
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,” nor is it “a 
decision that was based on an unreasonable determination of the facts in light of the evidence 
presented in the State court proceeding.”  See
28 U.S.C. § 2254
(d)(1) & (2).  This Court reiterates 
Petitioner does not challenge the sufficiency of the evidence and further agrees with the Missouri 
Supreme Court that there is no prejudice under Strickland.                
    Ground Two is denied.                                                
 C.  Ground Three – Ineffective Assistance of Trial Counsel:  Motion to Sever  
    Petitioner  next  claims  trial  counsel  were  ineffective  in  that  they  rendered  deficient 
performance by failing to file a written motion to sever the felon-in-possession charge, and that 
Petitioner was prejudiced since the trial proceeded on all counts and the State was therefore 
allowed to present otherwise inadmissible evidence.                       
    Following  Strickland,  the  Missouri  Supreme  Court  noted  that  pursuant  to  Missouri 
Supreme Court Rule 24.07, counsel should have lodged a written motion to sever, rather than 
relying solely on an oral motion.  The state supreme court noted additionally that the motion court 
found counsel were not ineffective for failing to file a written motion because, as the sitting trial 
judge, she would have overruled a written motion had it been filed; such a ruling is committed to 
the sound discretion of the trial court in Missouri, and the high court saw no reason to disturb the 
ruling.  The state court then determined that Catlett had admitted he knew Petitioner – as a prior 
offender – was not entitled to severance per state statute because a prior offender in a first-degree 
murder case can be tried for multiple offenses that are lawfully joined under state law.  
    The Missouri Supreme Court then concluded as follows:                
    [J]oinder of the felon-in-possession charge with the first-degree murder charge was 
    permissible under section 565.004.3 [of the Revised Statutes of Missouri].  As a 
    result, [Missouri Supreme Court] Rule 24.07 requires the written motion to sever 
    to make “a particularized showing of substantial prejudice if the offense is not tried 
    separately” and the trial court must make a finding that a bias or discrimination 
    against a party exists that requires the severance and a separate trial. 

         At the evidentiary hearing on Hosier’s postconviction relief motion, Hosier 
    failed to show that – even in the improper oral motion – defense counsel made (or 
    even could have made) a “particularized showing of substantial prejudice[.]”  More 
    important, Hosier failed to show that the trial court would have made a finding 
    sufficient to grant a proper severance motion (assuming one had been made) 
    because Judge Joyce, the motion court judge, found she considered the oral motion 
    to sever while sitting as the trial court and overruled it.  Accordingly, even if 
    defense counsel had filed a written motion to sever, it would have been overruled 
    just as the oral motion to sever was.                                

Hosier, 593 S.W.3d at 85.  Additionally, the Missouri Supreme Court acknowledged the analysis 
on direct review of the issue of admission of Petitioner’s possession of 14 firearms when his car 
was stopped, wherein the court noted the 14 guns and ammunition were logically relevant because 
they were found in his car during his flight from Jefferson City after the murders and highly 
probative to show consciousness of guilt.  The state supreme court concluded that even if defense 
counsel had persuaded the trial court to sever the felon-in-possession charge, the evidence of 
firearms could and likely would have been admitted regardless.  Id. at 85-86. 
    Here, Petitioner offers several arguments in support of his claim of ineffective assistance 
of counsel, including that the state supreme court based its decision on a faulty inference by the 
motion court – namely that Petitioner’s trial counsel’s strategy was fronting Petitioner’s criminal 
record to the jury in the first part of the trial to avoid surprise in the penalty phase. 
    Recent Eighth Circuit precedent confirms proper review by the state courts as to the claim 
of ineffective assistance of counsel as to a motion to sever under Missouri law: 
         Severance  is  proper  only  after  the  defendant  “‘makes  a  particularized 
    showing of substantial prejudice if the offense is not tried separately’ and . . . the 
    ‘court finds the existence of a bias or discrimination against the party that requires 
    a separate trial of the offense.’”  Id. (quoting Mo. Sup. Ct. R. 24.07)).  Courts 
    consider factors such as “the number of offenses charged, the complexity of the 
    evidence to be offered and whether the trier of fact can realistically distinguish the 
    evidence and apply the law intelligently to each offense.”  State v. Sims,
764 S.W.2d 
    692, 697
(Mo. Ct. App. 1988).  “The general allegation that the jury would likely 
    consider evidence of guilt on one charge as evidence of guilt on another charge 
    does not meet the requirement of a particularized showing of substantial prejudice.”  
    State v. Simmons,
158 S.W.3d 901, 909
(Mo. Ct. App. 2005) (quotation omitted).  
    “If evidence relating to each offense is distinct and uncomplicated and the jury is 
    properly instructed to return separate verdicts for each offense charged, the trial 
    court does not abuse its discretion in denying a motion to sever.”  State v. Tolen,
304 S.W.3d 229, 236
(Mo. Ct. App. 2009).                             

Donelson v. Steele,
16 F.4th 559, 572
(8th Cir. 2021).                    
    Petitioner’s contention that his counsel were ineffective for failing to properly move to 
sever is without merit.  On this record and under the Donelson standard, it is clear that the motion, 
had it been lodged properly, would have been denied.  Thus, this Court agrees with Respondent 
that Petitioner cannot show deficient performance as counsel cannot be ineffective for failing to 
file a meritless motion where the record supports the denial of the motion.  See Rodriguez v. United 
States,
17 F.3d 225, 226
(8th Cir. 1994) (“[C]ounsel’s failure to raise a meritless argument cannot 
constitute ineffective assistance.”).                                     
    Petitioner’s claim of prejudice also is without merit.  As noted by the state court: 
    . . . Hosier did not show that counsel’s failure to do so undermines the Court’s 
    confidence in the outcome of the guilt phase by showing there is a reasonable 
    probability that the outcome of the trial would have been different.  See [State v.] 
    Deck, 68 S.W.3d [527] at 426 [(Mo. banc 2010)].  Hosier’s theory is that he was 
    unfairly prejudiced when the evidence of all 15 weapons and related ammunition 
    was admitted in his trial, because – if counsel would have gotten the trial court to 
    sever the felon-in-possession charge – at most only the murder weapon would have 
    been admitted.  This argument fails because this Court has already held otherwise.   

                          *    *    *                                    
         Accordingly, even if defense counsel had persuaded the trial court to sever 
    the felon-in-possession charge, the evidence of these firearms could – and likely 
    would – have been admitted anyway.                                   

Hosier, 593 S.W.3d at 85-86.  Petitioner also asserts prejudice on the ground that the jury would 
not have been aware of his prior felony conviction had the motion to sever been granted.  However, 
as noted above, the jury found Petitioner guilty after the State presented a wide range of inculpatory 
evidence.  Petitioner has not shown prejudice.                            
    Given the record and a thorough Strickland-based analysis, the state court’s determinations 
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” or in “a decision 
that was based on an unreasonable determination of the facts in light of the evidence presented in 
the State court proceeding.”  See
28 U.S.C. § 2254
(d)(1) - (2).  This Court again reiterates 
Petitioner does not challenge the sufficiency of the evidence and further agrees with the Missouri 
Supreme Court that there is no prejudice under Strickland.                
    Ground Three is denied.                                              
 D.  Ground Four – Ineffective Assistance of Trial Counsel:  Closing Argument at the 
    Penalty Phase                                                        

    Petitioner next contends trial counsel were ineffective for not “properly” objecting to the 
prosecutor’s closing argument during the penalty phase.  The Missouri Supreme Court summarized 
and reviewed the claim as follows:                                        
         Hosier claims defense counsel were ineffective for failing to make a proper 
    objection to a statement made during the state’s closing argument.  The relevant 
    portion of the transcript provides:                                  

         [PROSECUTOR]:  [T]he  [s]tate  urges  you  to  find  beyond  a  
         reasonable doubt those two aggravating circumstances and that this 
         evidence in aggravation outweighs any evidence of mitigation, and 
         then consider the death penalty as the just verdict in this case. 
              And in courts, jurors talk oftentimes – or people talk and then 
         talk about justice and doing one thing or the other and whether 
         something would actually get done or not.  And for purposes of  
         making that decision, I’ve worked on death penalty cases as a   
         prosecutor.  And the last four to five that I’ve worked on have been 
         executed.                                                       

         [DEFENSE COUNSEL]: Judge, I’m going to object to this.          

         [PROSECUTOR]: They’ve been executed.                            

         [DEFENSE COUNSEL]: I’m going to object at this point.  May I    
         approach if you think it’s necessary?                           
         (Counsel approached the bench, and the following proceedings were 
         had:)                                                           

         [DEFENSE COUNSEL]: It’s inappropriate closing argument.  If     
         [the state] is preparing to imply or explicitly state to this jury or even 
         imply that he has some special knowledge that hasn’t been evidence 
         in this courtroom –                                             

         [PROSECUTOR]: The next sentence, Your Honor, is “And you will   
         have to accept that if you give him the death sentence he will be 
         executed.”                                                      

         THE COURT: Okay.                                                
         (Proceedings returned to open court.)                           

         [PROSECUTOR]: As I was saying before the objection there, and   
         you as jurors will have to base your decision if you give death that 
         he will certainly be executed.  In other words, have no doubt about 
         that.                                                           

         Hosier claims counsel should have objected on the grounds that the state 
    was arguing facts not in evidence and, if this objection had been made, it would 
    have (or, at least, should have) been sustained.  The motion court denied relief on 
    this claim, finding there was no error by defense counsel or any prejudice to Hosier 
    assuming there had been error.  These findings are not clearly erroneous. 

         Hosier’s argument fails in its premise.  Any reasonable reading of the 
    portion of the transcript set forth above shows defense counsel made the objection 
    Hosier now claims they should have made, i.e., that the state was arguing facts not 
    in evidence.  The trial court did not sustain this objection, but only after the state 
    assured the court it was heading toward safer (or, at least, less objectionable) 
    ground.  Whether the trial court acted properly is not before this Court in this 
    postconviction relief proceeding.  Such matters are for direct appeal, and Hosier 
    did not raise this issue in his direct appeal.  In this postconviction proceeding, the 
    Court is concerned only with whether Hosier received constitutionally effective 
    assistance of counsel, and defense counsel cannot be said to have fallen short of 
    this standard when they made the only objection Hosier asserts they should have 
    made.                                                                

Hosier, 593 S.W.3d at 92-93.  Petitioner argues his counsel rendered ineffective assistance by not 
objecting properly during the prosecutor’s closing argument and not properly preserving the issue 
for direct appeal.   Petitioner claims counsel failed to obtain a ruling, did not address the 
constitutional basis for the objection, and did not address all of the reasons the prosecutor’s 
argument was improper.12                                                  
    On federal habeas review, the Court asks whether the prosecutor’s comments “so infected 
the trial with unfairness as to make the resulting conviction a denial of due process.”  Darden v. 
Wainwright,
477 U.S. 168, 181
(1986).  Despite the same test applying to guilt-phase arguments, 
a more searching review should be done of the penalty-phase arguments.  Copeland v. Washington,
232 F.3d 969
, 974 n.2 (8th Cir. 2000) (“if there is any distinction between guilt and penalty phase 
arguments, it would seem that there should be a more searching review of the penalty phase”). 

    12 The Missouri Supreme Court additionally noted defense counsel did not reassert their closing 
argument objection in the motion for a new trial and Petitioner did not claim their failure to do so or failure 
to raise the issue on direct appeal constituted ineffective assistance of counsel.  To that end, Respondent 
correctly notes the matter is procedurally defaulted because Petitioner failed to properly raise the claim in 
the state court.  Although this claim is addressed to the extent it was raised in the state court, Petitioner 
would not be afforded relief under Martinez on any related defaulted arguments or otherwise because, again, 
the claims are not substantial and there is no prejudice.                 
    With that standard in mind and after review of the record and law, the Court finds the state 
court’s  determinations  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” or in “a decision that was based on an unreasonable determination of the facts 
in light of the evidence presented in the State court proceeding.”  See
28 U.S.C. § 2254
(d)(1) - (2); 
Cole v. Roper,
623 F.3d 1183, 1195-96
(8th Cir. 2010) (denying relief where closing arguments in 
penalty phase described the death penalty as “a weapon we need to have in our arsenal to fight 
crime,” and comparing the jury to “‘patriots’ who need to step up to protect society”);  Storey v. 
Roper,
603 F.3d 507, 525
(8th Cir. 2010) (closing argument highlighting the victim impact 
evidence that did not make a point of comparing the value of the lives of the victim and the 
defendant was not unreasonable application of Strickland); Johnston v. Luebbers,
288 F.3d 1048, 
1057
(8th Cir. 2002) (denying relief where petitioner and court’s research did not indicate any 
cases ruling that closing remarks were either improper as a matter of federal constitutional law or 
resulted in sufficient prejudice to merit habeas relief and where petitioner did not show that any 
specific factual finding made by the state court was unreasonable); Simmons v. Bowersox,
235 
F.3d 1124, 1136
(8th Cir. 2001) (where prosecutor’s arguments were held to be “sprinkled with 
improper comments,” closing argument “did not dilute the gravity of a death sentence or place the 
responsibility of imposing a capital sentence in hands other than those of the jurors” and thus no 
habeas relief was warranted).  Petitioner has not directed the Court to any case indicating the 
remarks are either improper as a matter of federal constitutional law or resulted in sufficient 
prejudice to merit habeas relief.                                         
    Ground Four is denied.                                               
 E.  Ground Five – Ineffective Assistance of Trial Counsel:  Ballistics Evidence 
    Petitioner next argues trial counsel were ineffective for not investigating, seeking to 
exclude, or hiring an expert to contest the state’s ballistics evidence.  
    Petitioner concedes this claim is procedurally defaulted.  As noted above, a petitioner must 
exhaust state remedies.  In other words, to avoid procedurally defaulting on a claim, a federal 
habeas petitioner must have first fairly presented the substance of the claim to the state courts to 
afford the state courts a fair opportunity to apply controlling legal principles to the facts pertinent 
to the claim.  Wemark v. Iowa,
322 F.3d 1018, 1020-21
(8th Cir. 2003); see also Baldwin v. Reese,
541 U.S. 27, 29
(2004).  A claim has been fairly presented when a petitioner has properly raised 
the same factual grounds and legal theories in the state courts that he is attempting to raise in his 
federal petition.  Wemark,
322 F.3d at 1021
(internal quotation marks and citations omitted).  
Claims that have not been fairly presented to the state courts are procedurally defaulted.
Id.
at 
1022 (quoting Gray v. Netherland,
518 U.S. 152, 161-62
(1996)); Smith v. Groose,
998 F.2d 1439, 
1441
(8th Cir. 1993) (citation omitted) (holding that failure to comply with state procedural 
requirements “serves as an adequate and independent state procedural bar to review.”).   
    This  Court  may  not  review  procedurally  defaulted  claims  “unless  the  prisoner  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,
501 U.S. at 750
.                                      
    Here, Petitioner contends he is entitled to review through Martinez v. Ryan, in which the 
Supreme Court recognized a “narrow exception” to Coleman by holding that “[i]nadequate 
assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner’s 
procedural default of a claim of ineffective assistance at trial.”
566 U.S. 1, 9
(2012).  The primary 
concern in Martinez “is the prisoner’s potential inability – caused by ineffective counsel or a 
complete lack of counsel altogether – to present the merits of his ineffective assistance claim to 
some court with the authority to decide the matter.”  Franklin v. Hawley,
879 F.3d 307, 312
(8th 
Cir. 2018).                                                               
    To  excuse  a  procedural  default  under  Martinez,  the  underlying  claim  of  ineffective 
assistance of trial counsel must be “substantial,” and postconviction counsel must have been 
constitutionally ineffective with respect to the claim.  Martinez, 556 U.S. at 14.  A claim is 
“substantial” if it has “some merit” and “insubstantial” if “it does not have any merit or . . . is 
wholly without factual support.”  Id. at 14-16 (citing Miller-El v. Cockrell,
537 U.S. 322
(2003)); 
Kemp v. Kelley,
924 F.3d 489, 499
(8th Cir. 2019).13                      

    13  A petitioner must also show that the state post-conviction relief proceeding was the initial review 
proceeding, and state law required (or forced as a practical matter) the petitioner to bring the claim in the 
initial review collateral proceeding. Trevino v. Thaler,
569 U.S. 413, 423
(2013).  Here, there is no dispute 
as to these elements because Missouri does not permit a petitioner to bring an ineffective assistance of 
counsel claim on direct appeal.  Martinez, 556 U.S. at 4.  Rather, Missouri law requires a petitioner to bring 
such a claim in a collateral review proceeding.  To that end, Missouri Supreme Court Rule 29.15 provides 
the exclusive procedure by which a person convicted of a felony may seek relief for certain claims, 
including ineffective assistance of counsel; Rule 29.15(a) requires these claims for relief are to be brought 
in the sentencing court.                                                  
    The Court finds Petitioner fails to establish that his ineffectiveness claim based on trial 
counsels’ failure to investigate, seek to exclude, or hire an expert to contest the ballistics evidence 
is substantial.  As Respondent notes, Petitioner does not provide meaningful factual material that 
would support the claim of relief under either Rule 2(c) of the Rules Governing Section 2254 
Proceedings or Martinez’s requirement that the claim not be “wholly without factual support.”  Id. 
at 16.  For example, although Petitioner contends his counsel should have hired an expert witness, 
he does not “name the witness, demonstrate that the witness was available to testify and would 
have done so, set out the content of the witness’s proposed testimony, and show that the testimony 
would have been favorable to a particular defense.”  Day v. Quarterman,
566 F.3d 527, 538
(5th 
Cir. 2009) (citation omitted), cited with approval by Rodela Aguilar v. United States,
596 F.3d 
457, 462
(8th Cir. 2010).                                                 
    Further, Petitioner cannot establish his post-conviction counsel were ineffective for failing 
to raise the claim under Strickland.  As to the performance prong, the record reflects trial counsel 
conducted a lengthy cross-examination of the State’s ballistics expert.  Trial counsel elicited 
testimony  from  the  ballistics  expert  that  multiple  firearms  manufacturers  worldwide  have 
developed multiple weapons that fire 9 millimeter ammunition.  Trial counsel were able to have 
the expert concede that ballistics evidence “cannot show us when a shooting occurred,” who was 
holding a firearm at the time of a shooting, or explain the circumstances around a shooting, 
including what someone may have been thinking at the time of a shooting.  Trial counsel also 
questioned the expert about the alleged subjectivity on the part of the examiner for ballistics 
evidence.  Also during cross-examination, the State’s expert admitted that class characteristics 
only limited the potential pool of firearms somewhat, e.g. that an ejector mark may be the same on 
“thousands and thousands and thousands of guns.”  Trial counsel also highlighted that some of the 
ballistics evidence presented at trial was “inconclusive” and that the expert could not link the firing 
pin from the STEN submachine gun to any of the cartridge cases.  Trial counsel also highlighted 
that none of the cartridge cases had identifying breach marks, and that the expert did not 
photograph the ejector or extractor marks he used to link the cartridge cases to the STEN 
submachine  gun.    Later,  trial  counsel  highlighted  that  there  is  no  “protocol  in  the  lab  or 
standardized protocol nationally” for making an identification.  Trial counsel concluded by 
pointing out that the Missouri State Highway Patrol sends a testimony evaluation form to the party 
subpoenaing the expert for testimony and that the expert witness reexamined the firearm after 
being requested to do so by law enforcement.  Although Petitioner complains trial counsel did not 
make use of a specific 2006 National Academy of Sciences report that raises questions about the 
science of ballistics, the transcript reveals trial counsel indeed questioned the expert about this 
report.  (Doc. 13-1 at 1238-40); see also Anderson v. Kelley,
938 F.3d 949, 955-56
(8th Cir. 2019) 
(finding no Martinez violation where counsel did not seek mental diagnoses as “duty to investigate 
does not force defense lawyers to scour the globe on the off chance something will turn up”) 
(quoting Rompilla v. Beard,
545 U.S. 374, 383
(2005)).                    
    Petitioner also fails to establish prejudice in light of the overwhelming evidence of guilt.  
See Sanders v. Trickey,
875 F.2d 205, 210
(8th Cir. 1989) (holding, “Since appellant offers only 
speculation that he was prejudiced by the failure of his counsel to interview [a witness], he has not 
made the required showing of prejudice under Strickland.”).               
    Because Petitioner fails to establish that post-conviction relief counsel were ineffective 
under Strickland, he thus has failed to establish “cause” to excuse his procedural default.14  As a 
result, this ground is procedurally defaulted.                            
    Ground Five is denied.                                               
 F.  Ground Six – Admission of Forensic Evidence                         
    Petitioner next claims the trial court erred in allowing the government to present “shoddy” 
forensic evidence at his trial.  Petitioner again concedes this claim is procedurally defaulted on 
federal habeas review.                                                    
    As noted above, a federal habeas court may not review procedurally defaulted claims 
“unless the prisoner 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,
501 U.S. at 750
.  To demonstrate cause, a petitioner 
must show that “some objective factor external to the defense impeded [the petitioner’s] efforts to 
comply with the State’s procedural rule.”  Murray v. Carrier,
477 U.S. 478, 491
(1986).  To 
establish prejudice, a petitioner must demonstrate that the claimed errors “worked to his actual and 
substantial disadvantage, infecting his entire trial with error of constitutional dimensions.”  United 
States v. Frady,
456 U.S. 152, 170
(1982).  Lastly, in order to assert the fundamental miscarriage 

    14 Petitioner additionally fails to show that a fundamental miscarriage of justice will result if this or 
any other defaulted claim is not considered.  See Murphy v. King,
652 F.3d 845, 850
(8th Cir. 2011) (a 
petitioner must present new evidence that affirmatively demonstrates he is actually innocent of the crime 
for which he was convicted in order to fit within the fundamental miscarriage of justice exception).   
of justice exception, a petitioner must “‘present new evidence that affirmatively demonstrates that 
he is innocent of the crime for which he was convicted.’”  Murphy v. King,
652 F.3d 845, 850
(8th 
Cir. 2011) (quoting Abdi v. Hatch,
450 F.3d 334, 338
(8th Cir. 2006)).15   
    Here, Petitioner has not demonstrated cause and actual prejudice to overcome his default, 
nor has he established a fundamental miscarriage of justice would otherwise exist were this claim 
not analyzed on the merits.  Ex gratia, the Court notes Petitioner did not challenge the sufficiency 
of the evidence, and in light of the overwhelming evidence of guilt, any error was harmless.  See 
Feather v. United States,
18 F.4th 982, 985-86
(8th Cir. 2021) (affirming trial court’s denial of 
habeas relief because even if reliance on scientific evidence was outdated, fundamental fairness of 
trial was not undermined where there was ample other evidence of guilt beyond a reasonable 
doubt).                                                                   
    Ground Six is denied.                                                
 G. Ground Seven – Appearance of Impropriety                             
    As best as can be discerned, Petitioner contends he is entitled to federal habeas relief either 
because the trial court judge harbored bias against him or because a reasonable person with 
knowledge of all the facts and circumstances would find the appearance of impropriety and bias.  
Specifically, Petitioner claims error (1) as to the denial of his motion to disqualify the trial judge, 
which was filed only in post-conviction proceedings, and (2) as to the trial judge’s decision not to 
recuse sua sponte from his criminal case.16                               
    The Missouri Supreme Court examined this two-part claim as follows:  
         Hosier did not object to Judge Joyce presiding over his criminal trial, nor 
    did he claim on direct appeal that Judge Joyce should have recused herself sua 
    sponte.  He did, however, move to disqualify Judge Joyce from presiding over his 
    postconviction proceeding, and this Court appointed Judge Gary Oxenhandler to 
    hear that motion and rule on it.                                     

         Hosier based both his motion to disqualify Judge Joyce from presiding over 
    his postconviction proceeding and his claim that she should have recused herself 
    sua sponte in his criminal case on the same facts.  Before overruling Hosier’s 
    motion to disqualify Judge Joyce, Judge Oxenhandler held an evidentiary hearing 

    15 Although Petitioner claims he is entitled to review of this claim under Martinez, Respondent 
correctly notes this exception applies only to otherwise procedurally defaulted claims of ineffective 
assistance of trial counsel.  Dansby v. Hobbs,
766 F.3d 809, 833
(8th Cir. 2014).  Ex gratia, the Court notes 
the claim is not substantial under Martinez.                              
    16 For ease of analysis, the claims are addressed in the order considered by the Missouri Supreme 
Court.                                                                    
and found the following facts.  Judge Joyce previously served as an assistant 
prosecuting attorney in Cole County.  In that capacity, she represented the state in 
numerous  child  support  enforcement  cases.    In  one  of  those  child  support 
enforcement  cases,  decades  ago,  Judge  Joyce  was  the  attorney  of  record  for 
Hosier’s ex-wife, who was then owed child support from her previous husband.  
Judge Joyce had no memory of having any contact with the ex-wife during that 
case.  In fact, Judge Oxenhandler found the ex-wife was a party in name only in the 
child support enforcement action and that Judge Joyce actually represented the state 
as the real party in interest.  Ultimately, Judge Oxenhandler overruled the motion 
to disqualify Judge Joyce because her representation in the long-ago child support 
enforcement action would have no impact on her ability to preside over Hosier’s 
postconviction proceeding and because no reasonable person in possession of the 
relevant facts would believe there was even an appearance of impropriety in her 
doing so.                                                            

    Hosier now claims – for the first time in his Rule 29.15 motion – that Judge 
Joyce erred by not recusing herself sua sponte in his criminal case.  Both points 
failed below, and he pursues both of them in this appeal.  The Court rejects both 
arguments.                                                           

    A.   Judge Oxenhandler’s Ruling on Hosier’s Motion to Disqualify 
         Judge Joyce in Postconviction Proceeding                   

    The Court reviews a ruling on a motion to disqualify only for an abuse of 
discretion.  McLaughlin v. State,
378 S.W.3d 328, 338
(Mo. banc 2012).  A motion 
to disqualify should be granted if “a reasonable person would have factual grounds 
to find an appearance of impropriety and doubt the impartiality of the court.”  State 
v. Smulls,
935 S.W.2d 9, 17
(Mo. banc 1996).  “[A] disqualifying bias or prejudice 
is one that has an extrajudicial source and results in an opinion on the merits on 
some basis other than what the judge learned from the judge’s participation in a 
case.”  Anderson v. State,
402 S.W.3d 86, 91
(Mo. banc 2013) (quotation marks 
omitted).                                                            

    Judge Oxenhandler did not abuse his discretion.  Hosier’s motion rests 
entirely on a 25-year-old child support enforcement matter of which Judge Joyce 
had no recollection and in which she did not interact with Hosier’s ex-wife or 
anyone  connected  to  Hosier’s  criminal  case.    Instead,  it  was  merely  one  of 
thousands of such cases in which she participated.  No reasonable person with 
knowledge of these facts would find even an appearance of impropriety in Judge 
Joyce’s ability to preside over Hosier’s postconviction proceedings.  Smulls,
935 
S.W.2d at 17
.                                                        

    B.   Judge Joyce’s Decision not to Recuse from Criminal Proceeding 

    Separate and apart from Hosier’s motion to disqualify Judge Joyce from 
presiding over his postconviction proceedings, Hosier claims that he is entitled to 
    postconviction relief because Judge Joyce should have recused herself sua sponte 
    in his criminal case.  To be clear, Hosier challenges only Judge Joyce’s actions and 
    does not claim his defense counsel were ineffective for failing to move to disqualify 
    her in his criminal case.                                            

Hosier, 593 S.W.3d at 93-94.                                              
    Hosier has waived his challenge to Judge Joyce’s failure to recuse herself sua sponte in his 
criminal case by failing to raise that claim at any time during his criminal case, including on appeal.  
“Post-conviction relief under Rule 29.15 is not a substitute for direct appeal or to obtain a second 
chance at appellate review.”  McLaughlin,
378 S.W.3d at 357
.  Accordingly, the motion court did 
not err in rejecting this claim.                                          
    As to Petitioner’s claim concerning the motion filed in post-conviction proceedings, 
Respondent correctly argues “an infirmity in a state post-conviction proceeding does not raise a 
constitutional issue cognizable in a federal habeas petition.”  Gee v. Groose,
110 F.3d 1346
, 1351-
52 (8th Cir. 1997) (citations omitted).  Additionally, notwithstanding the procedural posture, 
Petitioner has not rebutted the state court findings of fact by clear and convincing evidence.
28 
U.S.C. § 2254
(e)(1); Grass,
749 F.3d at 743
.  Specifically, as detailed above, Judge Oxenhandler 
found that Judge Joyce represented the State – not Petitioner’s ex-wife – in a child support 
collection action; Judge Joyce never met Petitioner’s ex-wife; and Judge Joyce never attended any 
hearings on behalf of the State.  Additionally, Judge Oxenhandler found the 25-year-old child 
support matter “insignificant” and “just one of many thousands of child support collection cases 
that Judge Joyce handled.”  Petitioner fails to rebut these state court findings of fact by clear and 
convincing evidence.                                                      
    As to Petitioner’s claim the trial judge should have recused sua sponte, the Court similarly 
finds no error.  As the Missouri Supreme Court held, the crux of Petitioner’s claim is the trial judge 
should not have presided over Petitioner’s case because she was a prosecutor in the Cole County 
Prosecutor’s Office while Petitioner had an active child support case pending and the judge had 
some involvement in that case as a prosecutor for the State.  The claim was procedurally defaulted 
when it was not raised on direct appeal.  The Missouri Supreme Court did not review the claim on 
its merits, ruling that “Hosier has waived his challenge to Judge Joyce’s failure to recuse herself 
sua sponte in his criminal case by failing to raise that claim at any time during his criminal case, 
including on appeal.”  Respondent correctly notes this is an independent and adequate state law 
procedural ground and results in the procedural default of this claim for purposes of federal habeas 
review.  Murray,
477 U.S. at 492
.  Moreover, Petitioner has not shown good cause and actual 
prejudice to overcome his default, nor has he established a fundamental miscarriage of justice.   
    Finally, the Missouri Supreme Court nonetheless addressed the matter on its merits, ruling 
that “[e]ven if Hosier had asserted an ineffective assistance of counsel claim based on defense 
counsel’s failure to move to disqualify Judge Joyce in his criminal case, that claim would have 
failed because such a motion would have been meritless [in that] nothing about Judge Joyce’s 
involvement in the decades-old child support enforcement matter would give a reasonable person 
with knowledge of those facts even the appearance of an impropriety in her presiding over Hosier’s 
trial.”  Hosier, 593 S.W.3d at 94 n.6.  Ex gratia, the Court notes Petitioner did not challenge the 
sufficiency of the evidence, and in light of the overwhelming evidence of guilt, any error was 
harmless.  See Anderson v. Goeke, 44 F.3d at 679 (8th Cir. 1995) (holding that prosecutor’s 
statements during closing argument only warrant federal habeas relief if petitioner can show the 
statements were “so egregious that they fatally infected the proceedings and rendered his entire 
trial fundamentally unfair.”);  Johnson v. Strange, No. 4:17-CV-1953 PLC,
2021 WL 3077661
, at 
*9 (E.D. Mo. July 21, 2021) (petitioner’s preserved contention that trial judge was not impartial 
because he lived in the neighborhood where crime occurred “is not among the situations that have 
been identified in which experience teaches that the probability of actual bias on the part of the 
judge is too high to be constitutionally tolerable, such as where the judge has a pecuniary interest 
in the outcome or where he has been the target of personal abuse or criticism from the party before 
him”) (cleaned up; citations omitted); Fuentes v. Frakes, 4:19CV3060,
2020 WL 6888989
, at *13 
(D. Neb. Nov. 24, 2020) (petitioner’s contentions the trial judge should have recused and trial 
counsel was ineffective for not seeking recusal did not warrant relief where state supreme court’s 
findings accurately “represent[ed] the trial court record [in that] the record is devoid of any 
evidence that the trial judge had access to confidential information or even recalled representing 
Fuentes; that the trial judge used confidential, personal information in presiding over Fuentes’ trial 
or sentencing; or that the trial judge was biased or prejudiced against Fuentes in any way”; “trial 
judge’s representation of Fuentes 17 years earlier in a different criminal proceeding does not per 
se establish the trial judge’s impartiality [sic]or bias.”).              
    Ground Seven is denied.                                              
 H. Ground Eight – Ineffective Assistance of Counsel:  Biased Jurors     
    Petitioner next argues trial counsel were ineffective for failing to subject two jurors to 
examination during voir dire.  Specifically, Petitioner contends the Missouri Supreme Court 
attributed a reasonable strategy for counsel’s failure to thoroughly question and strike both jurors 
when no reasonable strategy existed.  Applying the familiar Strickland standard, the Missouri 
Supreme Court reviewed this claim on post-conviction appeal and denied relief, as follows: 
         Hosier claims defense counsel were constitutionally ineffective for failing 
    to move to strike two jurors from the venire panel.[17]  In voire dire, defense counsel 
    utilized juror questionnaires that asked venirepersons to rank their opinion of the 
    death penalty from “one” (strongly opposed) to “seven” (strongly in favor).  The 
    questionnaire also asked the venirepersons to describe in detail their opinions and 
    beliefs about the death penalty for a person found to have committed two deliberate 
    first-degree murders.  Defense counsel employed a jury consultant to help interpret 
    these surveys and assign individual rankings to the venirepersons based on their 
    desirability for the defense.  At the evidentiary hearing, Counsel Zembles testified 
    the  defense  was  looking  for  those  venirepersons  who  answered  the  question 
    regarding the death penalty with a “four” or a “five” because she believed those 
    who answered with a “one” would never make it on the jury and those who 
    answered with a “two” or “three” likely would not make it on the jury. 

         1. Failure to Strike Juror R.M.                                 

         First, Hosier argues defense counsel was ineffective for failing to move to 
    strike Juror R.M. because he was realistically unable to consider a punishment other 
    than death.  The motion court denied this claim, and its findings were not clearly 
    erroneous.                                                           

         Juror R.M. indicated a numerical bias toward the death penalty of “seven,” 
    meaning he was strongly in favor of the death penalty.  In explaining his belief 
    about the death penalty, however, Juror R.M. was more equivocal.  He wrote: “I 
    believe in the death penalty for a person who commits murder but I feel you would 
    have to know the circumstances that drove them to this.”  Concerning life without 
    parole, Juror R.M. wrote:  “[L]ife in prison doesn’t seem like a fair sentence to me 
    but again you would have to know the circumstances of the case.”  Finally, Juror 
    R.M. testified that his nephew had committed an armed robbery.       

    17  The Missouri Supreme Court included this footnote in its analysis: 
         On appeal, Hosier’s points relied on fail to state expressly whether he is claiming 
    defense counsel were ineffective for failing to move to strike Juror R.M. and Juror M.O. 
    for cause or for failing to use the defense’s peremptory strikes to remove them from the 
    venire.  Nevertheless, the gravamen of these points suggest it is the former because Hosier 
    argues Juror R.M. and Juror M.O. were unfit to serve in that they “could not realistically 
    consider life.”  This seems to focus on Juror R.M.’s and Juror M.O.’s fitness to serve rather 
    than on the virtually unassailable strategic decision as to which otherwise proper members 
    of the venire the defense should exercise its peremptory strikes.  Accordingly, the Court 
    will review Hosier’s claims as asserting the former argument and not the latter. 
    After evaluating Juror R.M.’s responses to the questionnaire and voire dire, 
defense counsel decided not to challenge him because they categorized Juror R.M. 
as a “wagon joiner,” meaning he would likely go along with the rest of the jury.  
Weighing in his favor  (in the defense’s eyes), Juror R.M. testified he could 
meaningfully consider a sentence of life without parole, he would not hold it against 
Hosier if Hosier did not testify, and he knew the burden was entirely on the state. 

    Unless a juror is unqualified to serve such that allowing him or her to serve 
constitutes structural error (which Hosier does not claim), the decision whether to 
challenge a juror is ordinarily a matter of trial strategy, which need only be 
reasonable.  See Anderson [v. State], 196 S.W.3d [28] at 40 [(Mo. banc 2006)].  
“The  qualifications  for  a  prospective  juror  are  not  determined  from  a  single 
response, but rather from the entire examination.”  State v. Deck,
303 S.W.3d 527, 
535
(Mo. banc 2010).  “The trial judge evaluates the venire’s responses and 
determines  whether  their  views  would  prevent  or  substantially  impair  their 
performance as jurors (including the ability to follow instructions on the burden of 
proof).”
Id.
(quotation marks and alteration omitted).             

    The motion court found the decision not to move to strike Juror R.M. was a 
reasonable  trial  strategy.    This  finding  is  not clearly  erroneous.    Juror  R.M. 
demonstrated he could serve with an open mind, that he would follow the court’s 
instructions, and that he could give meaningful consideration to both a sentence of 
death and a sentence of life without parole (including that he would be able to sign 
either verdict if chosen as the foreperson).  Juror R.M. was asked on several 
occasions whether he could consider life without parole as a meaningful sentence, 
and consistently responded that he could.  If Hosier chose not to testify, Juror R.M. 
testified that he would not “put that on the scales” for the state and against Hosier.  
He also said the fact that there was evidence of a second homicide would not change 
his mind on whether life without parole could be a meaningful punishment.  Finally, 
he expressed the opinion that he would have to know the circumstances of the case 
before assessing punishment.  For these reasons, a motion to strike Juror R.M. likely 
would not have succeeded, and defense counsel’s decision not to challenge him was 
a reasonable strategy.  Anderson, 196 S.W.3d at 40.                  

    Nor does it appear there was any prejudice to Hosier’s decision not to move 
to strike Juror R.M.  “[A] movant is entitled to a presumption of prejudice resulting 
from counsel’s ineffective assistance during the jury selection process only if the 
movant can show that a biased venireperson ultimately served on the jury[.]”  
Strong v. State,
263 S.W.3d 636, 648
(Mo. banc 2008) (quotation marks omitted).  
For the reasons already explained, defense counsel lacked a sufficient basis to move 
to strike Juror R.M. from the venire.  With no presumption of prejudice to aid him, 
Hosier wholly failed to show a reasonable probability that either the guilt or penalty 
phases of his trial would have been different had Juror R.M. not served.
Id.
at 648-
49.                                                                  
    2. Failure to Strike Juror M.O.                                 

    Hosier similarly claims defense counsel were ineffective for failing to move 
to strike Juror M.O.  The motion court denied this claim, and its findings were not 
clearly erroneous.                                                   

    Juror M.O. indicated his opinion concerning the death penalty was a “five” 
on the scale of “one” (strongly opposed) to “seven” (strongly in favor).   In 
explaining his answer, Juror M.O. wrote: “[I]f [Hosier] was convicted of two 
deliberate murders that, if it can be proven beyond all reasonable doubt that an 
individual planned and committed two murders, then the death penalty is a just and 
appropriate punishment.”  Concerning life without parole, he wrote: “Under the 
circumstances provided,  I would say that  a sentence of life in prison would 
represent a humanitarian gift.”  Juror M.O. wrote that, although a willful disregard 
for human life was “not something that can be met with a great deal of leniency,” 
“the punishment must fit the crime. . . . ”  The death penalty should not be 
considered lightly. . . .  A jury can be just as guilty of disregarding human life if 
they arbitrarily condemn someone to death.”  He further wrote, “Again, every 
circumstance is different and requires different considerations.”  Even though his 
father had been a sheriff’s officer in Texas in the late 1980s, Juror M.O. testified 
that this fact would not make him on the side of law enforcement generally, and he 
testified his brother had been charged with and convicted of making “felony 
terroristic threats” to the brother’s ex-wife.  Finally, Juror M.O. said he tried “to be 
as unbiased as possible” in his professional career.  The motion court found the 
decision not to move to strike Juror M.O. was reasonable trial strategy.  This finding 
is not clearly erroneous.                                            

    As explained above, “[t]he qualifications for a prospective juror are not 
determined from a single response, but rather from the entire examination.”  Deck,
303 S.W.3d at 535
.  In ruling on a motion to strike, a “trial judge evaluates the 
venire’s  responses  and  determines  whether  their  views  would  prevent  or 
substantially impair their performance as jurors (including the ability to follow 
instructions on the burden of proof).”
Id.
(quotation marks omitted).  In light of 
this standard and the evidence adduced during voire dire, there is no reason to 
believe that a motion to strike Juror M.O. would have – or should have – been 
sustained.    Juror  M.O.  did  not  indicate  a  mind  unalterably  closed  or  an 
unwillingness or inability to follow the court’s instructions.
Id.
Just the opposite.  
His written response focused on his need to know the circumstances of a crime 
before deciding on a just punishment and that he understood proof beyond a 
reasonable doubt would be required.                                  

    Because Juror M.O. was qualified to serve, Hosier was required to show 
both that defense counsel’s decision not to move to strike Juror M.O. for cause was 
unreasonable and that he was prejudiced as a result.  As with his claim regarding 
Juror R.M., Hosier made neither showing.  The motion court’s denial of this claim 
was not error.                                                       
Hosier, 593 S.W.3d at 89-91.                                              
    Once again, given the record and a thorough Strickland-based analysis, the state court’s 
determinations 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” or in “a decision that was based on an unreasonable determination of the facts in light of 
the evidence presented in the State court proceeding.”  See
28 U.S.C. § 2254
(d)(1) - (2).18  In so 
ruling, the Court rejects Petitioner’s claim that additional portions of post-conviction counsel’s 
testimony concerning trial testimony not explicitly referenced in the state court decision, including 
statements that counsel had not reviewed jury questionnaires, should change the result.  As 
Respondent  points  out,  however,  Zembles  testified  the  entire  trial  team  reviewed  the  jury 
questionnaires (Doc. 13-7 at 93).19  Regardless, the follow-up questions to the jurors in question 
reflect reasonable strategy and cure any issues potentially raised by the juror’s answer to the 
written questions.  Rodriguez,
17 F.3d at 226
(holding there can be no deficient performance for 
failure to make a meritless motion).                                      
    Further, in light of the overwhelming evidence of guilt as set out above, this Court agrees 
with the state court that Petitioner cannot establish prejudice under Strickland.  See Young v. 
Bowersox,
161 F.3d 1159, 1161
(8th Cir. 1998) (holding “an error by counsel does not warrant 

    18 Respondent additionally correctly notes Petitioner’s assertion of cumulative error is defaulted 
because he did not raise it in the state courts.  Ex gratia, the Court has reviewed this claim and record and 
finds no relief is warranted.                                             
    Petitioner additionally broadly claimed “structural error” in the state court and renews the argument 
here but does not set out facts supporting this contention apart from those relating to the two jurors in 
question.  (See Docs. 13-8 at 97; 13-9 at 103.)  Petitioner’s claim of juror bias is non-meritorious as 
explained herein.  Given that the record indicates the jurors provided reasoned views, expressed they would 
follow the law, and indicated they would only impose a death sentence depending on the circumstances, 
Petitioner’s derivative claim of structural error is without merit.       
    19 Specifically, the transcript for the post-conviction evidentiary hearing at that citation reflects 
the following testimony:                                                  

    Q.   Now,  who  reviewed  the  questionnaires  after  you  received  them? 

    A.   We all did.  Don and I and Tami Miller who was our mitigation specialist and who 
         assists in jury selection by taking notes, giving input.  And I think our investigator 
         assisted in jury selection, but I’m not sure if she reviewed the questionnaires. 

Additionally, Zembles testified she did not “have an independent recollection of [the jurors in 
question], and – But, yes, always it comes down – it comes down to what’s available.”  (Doc. 13-
7 at 113-14).                                                             
setting aside the judgment of a criminal proceeding on collateral attack if the error had no effect 
on the judgment”); Wright v. Nix,
928 F.2d 270, 273
(8th Cir. 1991) (holding that a petitioner must 
show if a different jury had been seated it would have acquitted him).    
    Ground Eight is denied.                                              
 I.  Ground Nine – Ineffective Assistance of Counsel:  Victim Impact Evidence 
    Petitioner next contends he is entitled to relief in that trial counsel were ineffective for 
failing to object to victim impact evidence presented to the judge (and not the jury) because the 
testimony asks for a death sentence.                                      
    Barbara Eichholz, Victim’s mother, testified two times after the jury found Petitioner guilty 
– once to the jury and once to the trial court.  The entirety of Ms. Eichholz’s testimony to the jury 
was as follows:                                                           
    Q.   Please state your name for the jurors.                          
    A.   Barb Eichholz.                                                  
    Q.   Miss Eichholz, what was your relationship to [Victim]?          
    A.   She was my daughter.                                            
    Q.   And how old was [Victim] when she was murdered?                 
    A.   Oh, my.  Forty-five.                                            
    Q.   And would you have liked to have spent more time with your daughter?  
    A.   Why, yes.                                                       
    Q.   And you need to tell the jurors briefly why.                    
    A.   There were so many things we did together.  She had two sons, my grandsons, and 
         a great grandson.  We all liked to go places together.  We barbecued.  We’d had a 
         lot of family dinners, all holidays, birthdays for all the families.  She was just a joy 
         to be around.                                                   

    Q.   And do you miss her greatly?                                    
    A.   Oh, land, yes.  There’s not a day goes by that I don't think about her.  And still I’ll 
         turn around and think, “I need to call [Victim].” about something.  It just comes to 
         your mind.                                                      

    Q.   And [Victim]’s sons that you mentioned, their names, please?    
    A.    I’m sorry.  I can’t hear you.                                  
    Q.   What are [Victim]’s sons’ names?                                
    A.   Her oldest son is Joshua.  The second son is Dakota.  The grandson is Joshua James. 
(Doc. 13-1 at 1574-75.)                                                   
    Later, after the jury recommended death, Ms. Eichholz testified outside the presence of the 
jury and to the judge as follows:                                         
         This is a very difficult time.  I’ve started this impact statement numerous 
    times, but always emotions get me off into someplace else.  There’s really no way 
    to  express  the  loss  of your  daughter.    If  writing  this  statement  helps  in  the 
    sentencing, then the pain will definitely be worth it.               

         Please try and understand how all the family has been affected by this 
    senseless act.  None of us will ever look at life in the same way as we did before 
    September 28th, 2009.  This man took away a daughter, a mother of two sons, a 
    grandmother, a sister, an aunt, and cousin.  The senseless and hateful act has 
    definitely and permanently changed our family’s life forever.  I buried my daughter 
    because of this man’s deed.  No parent should ever have to do that.  

         [Victim] was always a presence at holiday functions, birthdays, or any 
    family affair.  She loved her family and loved being a part of their lives.  It’s hard 
    to believe that something like this can permanently affect a person, but it has.  Since 
    this act, I have lost interest in simple chores and functions, have stress and 
    sleeplessness.  I wake up and go to bed every day thinking of [Victim] and the 
    things we’d do together.  Just simple things like sharing a recipe, sharing an article 
    in a magazine, talking about JJ, her grandson.                       

         The pain never goes away.  Nights seem to be the most emotional time.  I 
    think, “Well, babe.  We made it through another day.  Hope tomorrow will bring 
    us a little more closure.”  It’s hard to believe that I won’t hear her giggle today or 
    ever again.  Seems like the smallest thoughts of [Victim] can bring on tears, 
    especially around certain dates and especially this past couple of months.  There’s 
    still times I’ll think or even say out loud, “I have to tell [Victim] this.”, only to 
    realize that she won’t hear me [as punctuated in original].          

         I see her son Josh who has recently graduated from college without her 
    knowing it.  She would have been so proud.  Her son Dakota advancing in the Navy 
    stationed on the USS Carl Vinson.  And he’s doing this without her praises that I 
    know she would have given freely.  And JJ, her only grandson, are all hurting.  Her 
    grandson still asks, “When is Granny Gilpin coming back to play with me?”  He 
    knows she’s in Heaven, but only as much as an eight-year-old can truly understand.  
    Her sister was devastated and has been on anti-depressants ever since [Victim]’s 
    death.  Both her brothers have also felt a great loss, as they were always close and 
    sharing all types of activities.                                     

         My daughter didn’t get a chance on – a choice on September 28th.  She was 
    ambushed and murdered as she was going to work as a productive citizen.  Please, 
    I beg of you, consider a choice of the death penalty for this cruel and selfish 
    man.  I realize at seventy-five I’ll never live to see him put to death, but I still 
    have the satisfaction of knowing that it will happen.                

         I hope none of you in attendance today will ever have to be in my place.  
    But I also know that’s the only way you’ll truly understand the pain this man has 
    caused.  Thank you for your time and understanding.  Our family appreciates 
    your consideration and decision to use the death penalty in this case.  Thank 
    you.                                                                 

(Doc. 13-1 at 1688-90 (emphases added).)                                  
    With the above Martinez framework in mind, the Court first addresses whether Petitioner’s 
claim regarding victim impact statements is substantial.  As noted above, a claim is “insubstantial” 
if “it does not have any merit or . . . is wholly without factual support.”  Martinez,
566 U.S. at 16
. 
    Petitioner claims the comments made by Victim’s mother to the sentencing judge violated 
Booth v. Maryland,
482 U.S. 496
(1987), in which the Supreme Court ruled the introduction of a 
victim impact statement at the sentencing phase of a capital murder trial violates the Eighth 
Amendment.  In Booth, the Supreme Court deemed invalid a state statute to the extent it required 
consideration of this information because it was irrelevant to a capital sentencing decision, and 
because its admission creates a constitutionally unacceptable risk that the jury may impose the 
death penalty in an arbitrary and capricious manner.20  In opposing this argument, Respondent 
highlights that only “two or three total sentences from two pages of testimony from Victim’s 
mother” are at issue here.  On this record, the Court questions Petitioner’s claim that these few 
statements by Victim’s mother made to the judge rise to the level of impermissible victim impact 
evidence, particularly in the context of the entirety of the victim impact evidence, which also 
included statements and testimony from other friends and relatives.  Nonetheless, the Court 
assumes without deciding that Petitioner’s claim concerning the victim impact statements is 
substantial.    More  specifically,  the  Court  assumes  without  deciding  that  Victim’s  mother’s 
testimony advocated the death penalty in violation of Booth and progeny, and thus the claim is 

    20 But see Payne v. Tennessee,
501 U.S. 808
(1991) (overruling Booth in part and holding that if a 
state chooses to permit the admission of victim impact evidence and prosecutorial argument on that subject, 
the Eighth Amendment erects no per se bar; a state may legitimately conclude that evidence about the 
victim and about the impact of the murder on the victim’s family is relevant to the jury’s decision as to 
whether or not the death penalty should be imposed); Bosse v. Oklahoma,
137 S. Ct. 1
(2016) (reaffirming 
that Payne specifically acknowledged its holding did not affect Booth’s prohibition on opinions about the 
crime, the defendant, and the appropriate punishment.).                   
substantial under Martinez.                                               
    Even with that assumption, Petitioner fails to establish post-conviction counsel were 
ineffective and thus has failed to establish cause to excuse his procedural default.  As noted above, 
“[j]udicial scrutiny of counsel’s performance must be highly deferential.  It is all too tempting for 
a defendant to second-guess counsel’s assistance[.]”  Strickland,
466 U.S. at 689
.  There is a 
“strong presumption that counsel’s conduct falls within the wide range of reasonable professional 
assistance.”
Id.
The Court finds post-conviction counsel were not deficient for failing to raise the claim.  
First, the testimony in question was brief, and, crucially, addressed only to the judge after the jury 
had already recommended a penalty of death.  “[I]n reviewing the work of their peers, federal 
judges must begin with the presumption that state courts know and follow the law.”  Dunn v. 
Reeves,
121 S.Ct. 2405
, 2511 (2011) (quotation omitted).  “Or, in more concrete terms, a federal 
court may grant relief only if every fairminded jurist would agree that every reasonable lawyer 
would have made a different decision.”
Id.
(quoting Richter,
562 U.S. at 101
) (cleaned up; 
emphasis in original);  see also Harris v. Rivera,
454 U.S. 339, 346
(1981) (“In bench trials, judges 
routinely hear inadmissible evidence that they are presumed to ignore when making decisions.”).  
Petitioner has failed to rebut the presumption that the trial judge knew the law and followed the 
law by not listening to the few now-challenged comments that Victim’s mother made to the court 
outside the presence of the jury.  In other words, Petitioner’s broad allegations fail to point to any 
part of the record indicating the alleged improper testimony to the trial judge led the court to an 
action that violates the Constitution, and thus post-conviction counsel were not deficient for failing 
to raise this claim.  Based on the unrebutted presumption that the trial court knew and followed 
the law, the fact that the comments were few in the context of the witness’s testimony and 
constituted a small part of the victim impact evidence overall, post-conviction counsel were not 
defective for failing to raise a claim.                                   
    In so ruling, the Court finds inapposite Petitioner’s cited authority where the challenged 
impact testimony was presented only to a judge.  In Graham v. State,
440 P.3d 309
(Alaska Ct. 
App. 2019), for instance, the Alaska Court of appeals reversed a 32-year-sentence for drunk-
driving homicide for a first-time offender where the trial court allowed the victim’s family to 
supplement their oral statements with                                     
    DVDs that contained photographic montages of Brooke’s and Jordyn’s lives, from 
    their infancy to their teenage years, displayed to the accompaniment of music.  
    These videos were the type of photo montage that would be displayed at a memorial 
    service – and, together, the two videos ran more than a half an hour.
Id. at 327
.  The trial court also allowed the police chief, a police sergeant, and the victim’s rights 
advocate to make statements, incorrectly ruling they qualified as victim impact statements.
Id. at 
327
.  The judge was “subject[ed] . . . to an hours-long drumbeat of grief and outrage.”
Id. at 328
.  
Because of multiple legal errors, the case was reversed and assigned to a different judge for 
resentencing.  See also State v. Hess,
23 A.3d 373, 393-94
(N.J. 2011) (finding ineffective 
assistance of counsel in part because of a 17-minute professionally produced video played at 
sentencing that included childhood photographs and video of the victim, poems, as well as popular, 
holiday, religious, and military music).  Here, in contrast, the extent of the challenged victim 
impact statements was three sentences asking the trial court to consider and decide to use the full 
range of punishment.  Petitioner’s authority is simply inapposite.        
    Petitioner additionally fails to establish deficient performance because the record of 
Petitioner’s  post-conviction  proceedings  indicates  that  post-conviction  counsel  reviewed 
Petitioner’s case and was familiar with the relevant legal issues.  (Docs. 13-7, 13-8.)   The record 
indicates, for example, that post-conviction counsel raised claims relating to objections trial 
counsel failed to make.  (Doc. 13-8 at 98, 118.)  To that end, Petitioner does not establish that post-
conviction counsel’s decision to raise certain issues in the post-conviction motion and omit others 
was not a reasonable exercise of professional judgment.  See Smith v. Robbins,
528 U.S. 259, 288
(2000) (noting “[g]enerally only when ignored issues are clearly stronger than those presented, 
will the presumption of effective assistance of counsel be overcome”) (citation omitted); Gee,
110 
F.3d at 1352
(reasonable appellate strategy requires an attorney to limit the appeal to those issues 
having the highest likelihood of success).  That is particularly true given the paucity of the 
challenged testimony.                                                     
    Further, there is no prejudice under Strickland because Petitioner’s broad allegations fail 
to point to any part of the record indicating a reasonable probability the result of the proceeding 
would  have  been  different,  particularly  given  the  trial  court’s  decision  matches  the  jury’s 
conclusion and the three sentences in question are a small portion of the mother’s complete 
testimony and are an even smaller portion of the victim impact portion of the trial.  Additionally, 
as Defendant notes, Petitioner cannot establish prejudice because of the Missouri Supreme Court’s 
statutorily required proportionality-review of the death sentence ultimately imposed.  See
Mo. Rev. 
Stat. § 565.035.3.21
During the analysis in this case, the Missouri Supreme Court determined first, 
Petitioner “has not argued that [his sentence was imposed under the influence of passion, prejudice, 
or any arbitrary factor], and there is nothing in the record that leads this Court to find the jury 
recommended the death penalty for any reasons aside from the evidence presented.”  Hosier,
454 
S.W.3d at 899
.   Second, the Missouri Supreme Court determined the evidence presented at trial 
supported the finding of aggravating factors that would justify the imposition of the death penalty 
(here, Petitioner had one or more assaultive criminal convictions and the murder was committed 
while the offender was engaged in the commission of another unlawful homicide).
Id.
Third, the 
state court determined the sentence was proportional to the penalty imposed in similar cases, citing 
seven such cases.
Id.
Additionally, notwithstanding Petitioner’s failure to demonstrate any error 
in the first instance, neither can Petitioner demonstrate that if counsel had objected to Victim’s 
mother’s testimony, the outcome of the sentencing phase would have been different.  
    In light of the strong presumption post-conviction counsel acted reasonably, the brief 
nature of the now-challenged statements, and the speculative nature of Petitioner’s allegations of 
ineffectiveness, Petitioner fails to show post-conviction counsel provided ineffective assistance 
relating  to  the  victim  impact  statements.    In  short,  Petitioner’s  allegations  in  his  petition, 
memorandum, and reply fail to establish cause to excuse his procedural default.   
    Ground Nine is denied.                                               
 J.  Ground Ten – Ineffective Assistance of Counsel:  Expert Medical Testimony  
    Petitioner next claims trial counsel were ineffective for failing to call Dr. Bruce Harry, a 
forensic psychiatrist, to testify Petitioner experienced a stroke, which caused brain damage, and 

    21 This statute provides:                                            
    With regard to the sentence, the supreme court shall determine:      
    (1)  Whether the sentence of death was imposed under the influence of passion, prejudice, 
    or any other arbitrary factor; and                                   
    (2)  Whether the evidence supports the jury’s or judge’s finding of a statutory aggravating 
    circumstance as enumerated in subsection 2 of section 565.032 and any other circumstance 
    found;                                                               
    (3)  Whether the sentence of death is excessive or disproportionate to the penalty imposed 
    in similar cases, considering both the offense, the strength of the evidence and the 
    defendant.                                                           
Hosier’s pre-existing mental illness affected his behavior.  Dr. Harry reviewed Petitioner’s records 
and examined Petitioner after the trial concluded at the request of post-conviction counsel.  (Doc. 
13-7 at 12.)  The Missouri Supreme Court reviewed the post-conviction claim and affirmed the 
denial of relief, as follows:                                             
    Counsel’s Failure to Call a Medical Expert in the Penalty Phase      

         Hosier claims defense counsel were ineffective for introducing medical 
    records regarding his mental health history into evidence in the penalty phase 
    without calling an expert witness to interpret those records for the jury.  One record 
    was the result of Hosier’s 96-hour involuntary commitment in Fulton State Hospital 
    in 1986 after he struck his ex-wife in the face in front of his young children.  This 
    record indicated Hosier had been diagnosed with recurrent depression.  The other 
    record was from Audrain Medical Center in 2007 and showed Hosier recently had 
    suffered  a  transient  ischemic  attack.[22]    At  the  evidentiary  hearing,  Hosier 
    presented the testimony of Dr. Bruce Harry, the former clinical director at Fulton 
    State Hospital, who had been retained to perform a general psychiatric evaluation 
    on Hosier.                                                           

    1. Failure to Call a Psychiatrist in the Penalty Phase               

         Hosier claims defense counsel were constitutionally ineffective because 
    their decision not to call an expert to interpret the 1986 Fulton State Hospital 
    records and the 2007 Audrain Medical Center records for the jury accounts for the 
    failure of the statutory mitigating circumstances he submitted, i.e., that the murder 
    was  committed  while  Hosier  was  under  the  influence  of  extreme  mental  or 
    emotional disturbance and that Hosier’s capacity to appreciate the criminality of 
    his conduct or conform his conduct to the requirements of the law was substantially 
    impaired.  See § 565.032.3(2), (6).  The motion court rejected this ineffective 
    assistance claim because there is no reasonable likelihood that an expert would have 
    altered the outcome of the penalty phase.  This finding is not clearly erroneous. 

         “Counsel’s decision not to call a witness is presumptively a matter of trial 
    strategy and will not support a claim of ineffective assistance of counsel unless the 
    defendant clearly establishes otherwise.”  Deck v. State,
381 S.W.3d 339, 346
(Mo. 
    banc 2012).  “As a matter of trial strategy, the determination to not call a witness is 
    virtually unchallengeable.”  Worthington v. State,
166 S.W.3d 566, 577
(Mo. banc 
    2005).  “If a potential witness’s testimony would not unqualifiedly support a 
    defendant,  the  failure  to  call  such  a  witness  does  not  constitute  ineffective 
    assistance.”
Id.
(quotation marks omitted).  Instead, to prevail on a claim of 
    ineffective assistance of counsel for failure to call a witness, a movant must show: 

    22 The Missouri Supreme Court noted in a footnote:  “Dr. Bruce Harry testified at the evidentiary 
hearing that a transient ischemic attack is a temporary decrease in blood flow and consequent loss of oxygen 
and glucose to part of the brain, with the resulting symptoms resembling those of a stroke.” 
    “(1) counsel knew or should have known of the existence of the witness; (2) the 
    witness could be located through reasonable investigation; (3) the witness would 
    testify; and (4) the witness’s testimony would have produced a viable defense.”  
    Deck,
381 S.W.3d at 346
.  In the penalty phase of a capital case, a viable defense 
    “is one in which there is a reasonable probability that the additional mitigating 
    evidence  th[e]  witness[  ]  would  have  provided  would  have  outweighed  the 
    aggravating evidence presented by the prosecutor resulting in the jury voting 
    against the death penalty.”
Id.
(footnote omitted).                 

         Here, the motion court found there was no reason to believe that calling an 
    expert to explain these medical records would have resulted in a “viable defense” 
    otherwise unavailable to Hosier, and this finding is amply supported by the record.  
    First, defense counsel were able to present Hosier’s mental health defense at the 
    penalty  stage  without  a  medical  expert.    Hosier’s  mother  testified  via  video 
    deposition regarding Hosier’s father being killed in the line of duty when Hosier 
    was a teenager and Hosier’s subsequent troubles.  A retired Jefferson City police 
    officer, among others, testified regarding the 1986 incident that resulted in the 96-
    hour involuntary commitment to Fulton State Hospital.  And, significantly, defense 
    counsel used the state’s own evidence (i.e., the Indiana conviction in which the 
    judge  recommended  Hosier  receive  psychiatric  treatment)  to  present  their 
    mitigation theory to the jury.  With no showing that any helpful parts of the 1986 
    and 2007 medical records were beyond the understanding of the jury without an 
    expert to explain them, defense counsel’s decision to present their mental health 
    mitigation theories without an expert was reasonable trial strategy. 

Hosier, 593 S.W.3d at 87-89 (brackets in original).                       
    Petitioner now claims the Missouri Supreme Court’s ruling was unreasonable and contrary 
to Supreme Court law.  Specifically, Petitioner claims the mental health mitigation was not 
adequately presented without an expert because:  (1) no lay witness mentioned Petitioner had a 
stroke, (2) no lay witness explained that Petitioner’s stroke and resulting brain damage would 
exacerbate his already existing mental illness, (3) counsel did not point out Petitioner suffered a 
stroke, and (4) no lay witness explained how Petitioner’s mental illness would have affected his 
behavior at the time of his crime or how it would have been a mitigating circumstance present 
throughout his life that negatively affected his behavior generally.      
    Again,  given  the  record  and  a  thorough  Strickland-based  analysis,  the  state  court’s 
determinations 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” or in “a decision that was based on an unreasonable determination of the facts in light of 
the evidence presented in the State court proceeding.”  See
28 U.S.C. § 2254
(d)(1) - (2).  In so 
ruling, the Court agrees with the state court’s determination that trial counsel were not deficient 
since trial counsel presented some mitigation theory through the State’s evidence in the guilt phase.  
In fact, trial counsel highlighted Petitioner’s psychiatric issues several times.  (Doc. 13-1 at 1652-
53, 1654, 1655, 1660, 1661.)  As the state supreme court noted, other parts of Petitioner’s 
mitigation strategy were presented through testimony of his mother and a retired police officer, 
both during the penalty phase.  (Id. at 1580-88.)  Also during the penalty phase, trial counsel 
presented  mitigating  testimony  of  Petitioner’s  pastor,  of  a  former  landlord  who  described 
Petitioner’s depressive times, and of Petitioner’s sister.  Further, when the medical records were 
admitted, Petitioner’s counsel did specifically note that Petitioner had suffered a mini-stroke.  (Id. 
at 1639.)                                                                 
    Additionally, at the post-conviction evidentiary hearing, Dr. Harry testified Petitioner “did 
not want” “his trial lawyers [to] present a mental defect defense to the jury[.]”  Although Dr. Harry 
could not “remember the exact reason” why, Dr. Harry “believe[d]” Petitioner’s history “is one 
that he’s very s[k]eptical of psychiatric and psychological and mental health-related issues, and 
for whatever reason does not have much faith in that.”  (Doc. 13-7 at 38.)  The Eighth Circuit has 
held trial counsel is not ineffective for not presenting a defense that the client insisted trial counsel 
should not present.  See Jones v. Delo,
56 F.3d 878, 885
(8th Cir. 1995); LaRette v. Delo,
44 F.3d 
681, 685-86
(8th Cir. 1995) (counsel not ineffective where clients opposed efforts to produce 
mental health mitigation evidence).                                       
    Although Plaintiff’s case may have benefitted from an investigation into the effects of the 
stroke on his mental health, based on the totality of the defense strategy, the decision not to do so 
does not here rise to the level of deficient performance.  See Anderson,
938 F.3d at 957
(noting 
that although petitioner’s case may have benefitted from investigation of Fetal Alcohol Spectrum 
Disorders,  the  court  considers  “‘not  what  is  prudent  or  appropriate,  but  only  what  is 
constitutionally compelled’”) (quoting Burger v. Kemp,
483 U.S. 776, 794
(1987)).  Trial counsel’s 
decision here is not an error “so serious that counsel was not functioning as the ‘counsel’ 
guaranteed the defendant by the Sixth Amendment.”  Strickland,
466 U.S. at 687
. 
    As to the prejudice prong, the state court correctly concluded there is no prejudice because 
there is no reasonable likelihood Dr. Harry’s testimony would have altered the outcome of the 
penalty phase.  As an initial matter, much of Petitioner’s long history of threats and violence 
occurred decades before Petitioner’s 2007 stroke.  Additionally, the Eighth Circuit has noted 
complex psychological testimony is not always likely to persuade a jury.  See Middleton v. Roper,
455 F.3d 838, 849
(8th Cir. 2006) (noting empirical evidence of insanity defense shows jurors are 
put off by the defense and regard it with suspicion).  Finally, Petitioner has not shown a reasonable 
probability that the jury would have reached a different conclusion had they been presented with 
additional mental health evidence about the stroke, particularly given the jury had evidence of 
Petitioner’s psychiatric history.  Anderson,
938 F.3d at 958
.  In other words, based on the totality 
of the evidence before the jury, Petitioner has not shown a reasonable probability that the jury 
would have concluded the balance of aggravating and mitigating evidence did not warrant death 
had it been presented with one more mitigating circumstance.  See
id.
(quoting Strickland,
466 
U.S. at 695
.)                                                             
    Ground Ten is denied.23, 24                                          
 K. Ground Eleven – Ineffective Assistance of Counsel:  Petitioner’s Childhood 
    Petitioner next claims trial counsel were ineffective for failing to investigate and present 
evidence about his childhood.  In support, Petitioner attaches an affidavit from his sister indicating 
his father allegedly abused him, his family was broken after the murder of his father, his father 
molested his sister, Petitioner’s bicycle was damaged by an airline and Petitioner did not want to 
file a claim, Petitioner sometimes had a withdrawn relationship with his sister’s children, Petitioner 
would not let his sister touch his laundry, Petitioner needed help in school because of dyslexia, 
Petitioner wore a patch over his eye at school, and Petitioner could not advance in his career at the 
fire department because of his dyslexia.   Petitioner points to trial testimony indicating his 
childhood was wonderful in contrast to the content of the affidavit.  (Doc. 13-1 at 1456).  Petitioner 
includes an affidavit from the post-conviction relief mitigation specialist indicating, inter alia, time 
constraints made it difficult to complete a full investigation.  Petitioner seeks to invoke Martinez 

    23 In this ground, Petitioner also asserts the state court was ineffective for failing to investigate this 
matter.  This claim is defaulted because Petitioner did not present this distinct theory to the Missouri 
Supreme Court.  As Respondent notes, because the default occurred based on the actions of post-conviction 
appellate counsel, Martinez cannot excuse the default.  Dansby,
766 F.3d at 833
.  Nonetheless, after ex 
gratia  review  of  the  arguments  and  record,  the  Court  finds  any  such  failure-to-investigate  claim 
insubstantial under Martinez.                                             
    24 Petitioner attaches affidavits from jurors in support as well as a letter from the prosecutor.  
Petitioner has not filed a motion to expand the record in accordance with Rule 7, which allows presentation 
of affidavits “in the discretion of the judge.” See also Fed. R. Evid. 606(b) (limiting juror testimony);  Fed. 
R. Evid. 408(a) (prohibiting admission of compromise offers).  Ex gratia, the Court has reviewed the 
exhibits for this ground and all other grounds and finds they would not alter the analysis.   
to excuse the default.  Ultimately, however, assuming these exhibits are admissible, the Court finds 
this claim is insubstantial under Martinez and therefore is procedurally barred.   
    Petitioner’s claim fails under both prongs of Strickland.  As to performance, “Strickland 
does not require counsel to investigate every conceivable line of mitigating evidence no matter 
how unlikely the effort would be to assist at sentencing.”  Wiggins,
539 U.S. at 533
; Knowles v. 
Mirzayance,
556 U.S. 111, 127
(2009) (“The law does not require counsel to raise every available 
nonfrivolous defense.”).  The Court has already determined the defense put forth substantial 
mitigation evidence.25                                                    
    Petitioner additionally cannot show prejudice.  Given the mitigation evidence that was 
adduced and the strength of the state’s case, there is not a reasonable probability that the additional 
mitigation evidence proffered would have led the jury to assess instead a life sentence.  See 
Anderson,
938 F.3d at 957
.  Moreover, not only was the proffered mitigation evidence not so 
compelling as to move any competent lawyer to pursue it, much of it also was cumulative.   
    Therefore, this claim is insubstantial under Martinez and post-conviction counsel could not 
have been ineffective for not pursuing it.                                
    Ground Eleven is denied.                                             

    25 Additionally,  a  review of  the record reveals trial counsel  highlighted  positive  aspects of 
Petitioner’s childhood in order to demonstrate the significant negative effects of the death of Petitioner’s 
father on Petitioner.  For instance, trial counsel argued:                

         And his father was – As David was growing up, his father was his hero, his mentor.  
    His father was the person who would – who taught him to hunt, who taught him to fish, 
    who taught him all about guns.  This was a churchgoing family, happy family, spent lots 
    of time at the lake fishing, swimming.  It’s a practically Leave It To Beaver kind of 
    situation.  Until April 13th, 1971, David’s father who was an Indiana state policeman which 
    is the equivalent of the Missouri State Highway Patrol – David’s father went out on a call 
    one night.  And while David was – This was two months after David’s 16th birthday.  And 
    while David was home in bed with his mom also in the house, the man that Glen Hosier 
    was attempting to arrest along ironically with many, many other police officers who had 
    surrounded the house – This was known to be a dangerous situation.  And Glen went in the 
    house to try and arrest this guy, and the guy shot him in the head. . . .  
         This was an absolute demarcation on David Hosier’s life, not just in terms of 
    changes in what went on around him, but in terms of changes of what went on within him.  
    And I think it’s fair to say based on the evidence that David Hosier never completely 
    recovered from the changes that happened around him and the changes that happened 
    within him as a result of his father’s death.                        

(Doc. 13-1 at 1457.)  Such presentation demonstrated reasonable strategy.   
 L.  Ground Twelve – Jury Misconduct                                     
    Petitioner next claims he is entitled to relief because “on information or belief” the jurors 
committed misconduct or were biased against him.  He explains,            
         For instance, one area which may prove fruitful is the prior experience of 
    jurors with domestic violence, and whether they were completely open about this 
    experience when questioned about it during voir dire.  Because of the sensitive and 
    private nature of domestic violence, Hosier suspects that some jurors may not 
    revealed [sic] prior experiences that may have led counsel or the court to strike 
    them for cause, or to use a peremptory strike to remove them from the jury.  In 
    addition, Hosier suspects that the issue of ballistics evidence in this case may have 
    engendered either outside research by jurors, or the introduction by some jurors of 
    their own specialized knowledge of the subject into deliberations.26 

(Doc. 9 at 257-58.)  Petitioner again concedes this claim is defaulted.  Petitioner seeks to invoke 
Martinez to excuse the default, but not only is the claim insufficiently pleaded, it is insubstantial 
under Martinez.                                                           
    To comply with Rule 2(c) of the Rules Governing Section 2254 Proceedings, Petitioner 
must state specific, particularized facts that entitle him to relief for each ground specified.  Adams 
v. Armontrout,
897 F.2d 332, 333-34
(8th Cir. 1990) (holding that “to substantially comply with 
the Section 2254 Rule 2(c), a petitioner must state specific, particularized facts which entitle him 
or her to habeas corpus relief for each ground specified.”  The petitioner’s “facts must consist of 
sufficient detail to enable the court to determine, from the face of the petition alone, whether the 
petition merits further habeas corpus review.”).  Petitioner did not allege specific facts concerning 
the jurors in question, nor did he provide citations to the record.       
    Ex gratia, Petitioner’s default cannot be excused under Martinez.  Because Petitioner has 
pleaded no facts and no theories for relief, Petitioner cannot demonstrate that post-conviction 
counsel were ineffective for failing to bring a claim that Petitioner has not discovered.  In other 
words, Petitioner has not discovered a claim, so he cannot show post-conviction relief counsel 
were ineffective, nor can he show the claim “has some merit” under Martinez.
566 U.S. at 14
.  
Even if a proper claim could be discerned from Petitioner’s habeas petition, it must fail because 
Petitioner cannot establish prejudice for the reasons previously explained. 
    Petitioner blames the failure to bring the claim, which he has not defined, in part on 

    26 In his reply brief, Petitioner states “one juror who was located expressed a willingness to meet 
with counsel and an investigator, but then changed her mind due to the Delta Variant.”  (Doc. 18 at 130.)   
COVID-19, on trial counsel, direct appeal counsel, and post-conviction counsel.  Martinez does 
not excuse procedural default for the actions of trial counsel or direct appeal counsel.  Dansby,
766 
F.3d 809, 833-34
(8th Cir. 2014).  Even if the COVID-19 pandemic affected Petitioner’s ability to 
investigate juror misconduct starting in March of 2020, Petitioner had several years since his trial, 
which concluded November 26, 2013, to investigate juror misconduct.  That period of time before 
COVID-19 weighs against any such relief Petitioner requests since it does not support a finding of 
due diligence in attempting to discover the existence of such a claim.  Holland v. Jackson,
542 
U.S. 649, 653
(2004) (“It is difficult to see, moreover, how respondent could claim due diligence 
given the 7-year delay.”).  More to the point, there is no indication the evidence before Petitioner’s 
counsel “amount[ed] to ‘red flags pointing up’” to investigate this claim.  Anderson,
938 F.3d at 
957
(quoting Rompilla,
545 U.S. at 383
).                                  
    Additionally, to the extent Petitioner seeks a stay of this habeas petition while he returns 
to state court to litigate this matter, that request is denied.  Exhaustion occurs either through fair 
presentation of the claim or through a procedural default of the claim.  O’Sullivan v. Boerckel,
526 
U.S. 838, 848
(1999); Coleman,
501 U.S. at 731-32
.  A stay should only be granted when a 
petitioner has shown “good cause” for his failure to present his claims to the state court in the first 
instance.  Rhines v. Weber,
544 U.S. 269, 277
(2005).  Here, Petitioner has not shown good cause 
for not presenting the claim to the state court, thus causing substantial delay, nor has he provided 
any indication the claims have merit.27                                   

    27 Petitioner also broadly indicates he wishes to file an amended petition at some unspecified time 
due to the COVID-19 pandemic (Doc. 9 at 258-60).  Similarly, in his reply, Petitioner requests at various 
times that the Court allow Petitioner “to amend his petition to correct any alleged errors” if the Court finds 
that any of his claims run afoul of Rule 2(c).  (See, e.g., Doc. 18 at 33, 98).   
    The scheduling order, filed March 15, 2021, states “[a]ny motions for extensions of time or for 
leave to amend . . . should be filed in the normal course.”  (Doc. 10.)  More than a year after the scheduling 
order was entered, Petitioner has not filed a motion for leave to amend.  
    Rule 12 of the Rules Governing Section 2254 Cases states the Federal Rules of Civil Procedure 
apply when consistent with the Rules Governing Section 2254 Cases.  Accordingly, “[u]nder Rule 15(a) 
[of the Federal Rules of Civil Procedure], once a responsive pleading has been filed, a prisoner may amend 
the petition only by leave of court or by written consent of the adverse party.”  Mayle v. Felix,
545 U.S. 
644, 663
(2005) (cleaned up).  Federal Rule of Civil Procedure 15(a) requires that leave to amend should 
be freely given “when justice so requires.”  While this is a permissive standard, leave to amend should not 
be granted when there is “undue delay, bad faith or dilatory motive on the part of the movant, repeated 
failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by 
virtue of allowance of the amendment, [or] futility of the amendment.”  Foman v. Davis,
371 U.S. 178, 182
(1962).                                                                   
    To the extent the Court could construe Petitioner’s requests to file an amended petition as a motion 
for leave to file an amended petition, such motion would be denied (at a minimum) as futile because 
    Ground Twelve is denied.                                             
 M. Ground Thirteen – Brady28 Claim                                      
    Finally, Petitioner claims trial counsel were ineffective because “on information or belief” 
the State committed a Brady violation.  Petitioner again concedes this point is defaulted.  Petitioner 
seeks to invoke Martinez to excuse the default, but the claim is insubstantial under Martinez.   
    Once again, Petitioner fails to comply with Rule 2(c).  Petitioner did not allege specific 
facts concerning Brady violations and only speculates the State failed to produce exculpatory 
evidence which prevented him from exploring lines of independent investigation, defense, or trial 
strategies.  Petitioner has not identified what, if anything, the State suppressed.  Nor has he shown 
how any alleged suppressed information was material to his case either because it was exculpatory 
or because it could have been used to impeach the State’s witnesses.  See Brady v. Maryland,
373 
U.S. 83, 87
(1963).  As noted above, several years have passed since the trial concluded, and 
Petitioner cites no facts supporting a Brady claim.                       
    For the reasons stated as to Ground Twelve, Petitioner’s default cannot be excused by 
Martinez, and the Court declines to stay the case.                        
    Ground Thirteen is denied.                                           





Petitioner has identified no additional allegations he could make to cure deficiencies, nor has he proffered 
an amended petition in accordance with Local Rule 15.1 (“A party filing a motion to amend or a motion 
for leave to file a pleading or other document that may not be filed as a matter of right must . . . [a]ttach the 
proposed pleading or other document.”).  See Minneapolis Firefighters’ Relief Ass’n v. MEMC Elec. 
Materials, Inc.,
641 F.3d 1023, 1030
(8th Cir. 2011) (footnote in resistance to motion to dismiss requesting 
leave to amend in the event of dismissal is insufficient); Dudek v. Prudential Sec., Inc.,
295 F.3d 875, 880
(8th Cir. 2002) (where plaintiffs did not include a proposed amended pleading per local rule and describe 
changes they would make, district court did not abuse its discretion in granting motion to dismiss).   
    28 Brady v. Maryland,
373 U.S. 83, 87
(1963) (ruling “[t]he suppression 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.”).        
 N.  Allegations of Cumulative Error                                     
    Petitioner argues at various times in his briefing that he is entitled to relief based on the 
cumulative deficiencies.  However, as Respondent notes, Eighth Circuit precedent forecloses this 
argument.  Cole,
623 F.3d at 1196
(citing Hall v. Luebbers,
296 F.3d 685, 692-93
(8th Cir. 2002)). 
IV.  Conclusion and Certificate of Appealability29                        
    For the reasons set forth above, Petitioner’s petition for relief under
28 U.S.C. § 2254
is 
DENIED.  Under
28 U.S.C. § 2253
(c), the Court may issue a certificate of appealability only 
“where a petitioner has made a substantial showing of the denial of a constitutional right.”  To 
satisfy this standard, Petitioner must show that “reasonable jurists” would find the district court 
ruling on the constitutional claim(s) “debatable or wrong.”  Tennard v. Dretke,
542 U.S. 274, 276
(2004).  Because Petitioner has not met this standard, a certificate of appealability is DENIED.   
    Accordingly, it is ORDERED that:                                     
    (1) the petition for writ of habeas corpus is DENIED; and            
    (2) the issuance of a certificate of appealability is DENIED.        
IT IS SO ORDERED.                                                         
                                  /s/ Roseann A. Ketchmark               
                                  ROSEANN A. KETCHMARK, JUDGE            
                                  UNITED STATES DISTRICT COURT           

DATED:  April 14, 2022                                                    


    29  The Court additionally notes Petitioner’s request for discovery and evidentiary hearing.  An 
evidentiary hearing on a habeas petition is mandatory only if a petitioner was denied a “full and fair hearing 
in a state court, either at the time of the trial or in a collateral proceeding.”  Townsend v. Sain,
372 U.S. 
293, 312
(1963).  The Court need not hold an evidentiary hearing if the petitioner fails to allege facts 
sufficient to justify habeas relief.
Id.
The Court finds Petitioner’s claims do not entitle him to relief and 
concludes that no further evidentiary development is required for the resolution of Petitioner’s grounds.  
Further, Petitioner fails to demonstrate that an evidentiary hearing is warranted under the applicable 
standards set forth in
28 U.S.C. § 2254
(e)(2).  See also Thomas v. Payne,
960 F.3d 465
, 474 (8th Cir. 2020) 
(holding “even if a petitioner alleges that his counsel’s ineffectiveness caused him to omit an ineffective-
assistance-at-trial claim in his initial-review postconviction proceeding, a district court may still deny a 
hearing if it finds the claim not ‘substantial’ or ‘potentially meritorious.’”)  Schriro v. Landrigan,
550 U.S. 
465, 473
(2007) (explaining that “the decision to grant an evidentiary hearing” remains within the “sound 
discretion of district courts”).  Similarly, Petitioner’s request for discovery is also denied as Petitioner has 
not shown good cause inasmuch as his allegations do not give the court reason to believe, if the facts are 
fully developed, that he entitled to relief; nor has he shown that § 2254(e)(2) is satisfied.  See Rule 6 of the 
Rules Governing Habeas Corpus Cases Under § 2254; Newton v. Kemna,
354 F3d 776, 783
(8th Cir. 2004).