Politte v. Kempker

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
MEMORANDUM AND ORDER
This matter is before the Court on Michael Politte’s (“Politte” or “Petitioner”) petition for
writ of habeas corpus (ECF No. 1). Respondent John Mosley, Missouri Director of Division of
Probation and Parole (“Respondent”) filed a Response to Order to Show Cause (ECF No. 21).1
Politte filed a Reply in Support of Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2254
(ECF No. 29). For the reasons set forth below, the petition for writ of habeas corpus is denied.
I. 	BACKGROUND
In 2002, a jury found Petitioner Michael Politte guilty of second-degree murder. After a
change of venue from Washington County, the St. Francois Circuit Court sentenced Petitioner to
life imprisonment. He was released in April 2022, and remains on parole and under the supervision
of the Missouri Board of Probation and Parole.
1 John Mosley, Missouri Director of Division of Probation and Parole, is substituted as the Respondent in this action
pursuant to Fed. R. Civ. P. 25(d). See https://doc.mo.gov/divisions/probation-parole.
MICHAEL B. POLITTE,
Petitioner,
vs.
JOHN MOSLEY, Missouri Director of
Division of Probation and Parole,
Respondent.
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The Court takes the statement of the underlying facts from the Decision, Judgment, and
Order of the Circuit Court of Cole County, State of Missouri, on Petitioner’s Amended Habeas
Corpus Petition (ECF No. 21-89, hereinafter “Cole County Decision”):
[Petitioner], was charged by information with second degree murder, § 565.021 RSMo
2000 (L.F. 615). [Footnote omitted]. On January 29, 2002, [Petitioner’s] case proceeded to trial
before a jury in the Circuit Court of St. Francois County on a change of venue from Washington
County, the Honorable Kenneth W. Pratte presiding (L.F. 10, Tr. 1).
[Petitioner] does not challenge the sufficiency of the evidence to sustain his conviction.
Viewed in the light most favorable to the jury’s verdict, the evidence adduced at trial was as
follows: In the fall of 1998, Rita Politte lived in a double-wide trailer in Washington County,
Missouri with her two daughters and [Petitioner], her fourteen-year old son (Tr. 176). Rita had
dated a man named Derek Politte (no relation) for a few months when she invited him over for
dinner on November 18, 1998 (Tr. 175). During this dinner, [Petitioner] and Rita fought over
[Petitioner] asking her for 500 to 600 dollars for a new motorcycle part (Tr. 177–178). Eventually,
Rita and Derek went into the living room to watch a movie while [Petitioner] came in and sat on
the floor (Tr. 178–179). [Petitioner] just sat on the floor and continuously flicked a lighter while
staring at them (Tr. 179). Derek felt so uncomfortable with the situation that he left (Tr. 183).
On December 5, 1998, in the early morning hours at around 6:30 a.m., Leighann Skiles,
Rita Politte’s neighbor and cousin by marriage, was awakened by a bang on her door (Tr. 195–
196). Josh Sansoucie, a friend of [Petitioner’s], told her that he needed to call the fire department
as Rita’s trailer was on fire (Tr. 196–197). Sansoucie ran back outside while Leighann called her
father-in-law Chuck Stiles, who lived on the other side of Rita, to inform him about the fire (Tr.
193, 197–198). When Leighann went outside she saw [Petitioner] calmly coming out the side of
Rita’s house and heard him say to Sansoucie, “Dude, that’s my mom on the floor” and asked him
if he had a cigarette (Tr. 199–202).
Meanwhile, Chuck Stiles had told his wife to call the fire department while he went to
Rita’s house (Tr. 213). When he went outside, he saw [Petitioner] and Sansoucie running down
toward to Rita’s house (Tr. 214). As Chuck finally made it inside Rita’s trailer, [Petitioner] and
Sansoucie were coming out of [Petitioner’s] bedroom and [Petitioner] said, “There’s my mom.
She’s on fire. She’s dead” (Tr. 215). As Chuck looked toward Rita’s bedroom, he could see just
her legs as there was smoke and fire in the room (Tr. 216). He also saw a water hose laying on the
floor (Tr. 216).
Detective Curt Davis of the Washington County Sheriffs’ Department was called to Rita
Politte’s residence around 7:00 a.m. on December 5, 1998 (Tr. 449). Sheriff Ronnie Skiles,
members of the fire department, and other officers were already at the scene (Tr. 449). Det. Davis
had been told that there was a dead body in the house (Tr. 449). As a result, he began to take
photographs of the scene (Tr. 449–450). Sheriff Skiles informed Det. Davis that there were two
boys, [Petitioner] and his friend, Josh Sansoucie, who had been at the house all night (Tr. 453).
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Det. Davis was then told to interview [Petitioner] and Sansoucie to see if either of them “knew
anything” (Tr. 454).
Det. Davis talked to [Petitioner], who was sitting in a patrol car (Tr. 453). [Petitioner] was
not handcuffed (Tr. 453). Det. Davis identified himself and asked [Petitioner] if he had been there
all night and [Petitioner] responded, yes (Tr. 454). Det. Davis then asked appellant what had taken
place (Tr. 454). [Petitioner’s] statement to Det. Davis was as follows:
Michael Politte had advised me that he and a friend [Sansoucie] was at his
house the evening before, around 10:30 p.m., and that his mom went to bed about
12:30, and he and his friend went to bed about ten minutes later. And the next
morning he woke up to the smell of smoke. He turned over and asked his friend if
he had been smoking a cigarette. And his friend advised him, no, he had not. So
they got up, they see a fire in his mom’s bedroom. And so his friend goes running
out of the house, yelling, call the fire department. And Michael Politte stated that
he couldn’t get to the phone. So he ran out of the house and told his friend to turn
on the hose. And he drug the hose in to try to put the fire out. And that his friend
went up to the neighbor’s house to call the fire department. And he stated that he
couldn’t get the fire out and realized that it was his mom on fire. So he ran up to
meet his friend, and he was on his way back from the neighbor’s. They met. They
came back. They stood outside. And then the next thing they knew, the fire
department had shown up...he mentioned that when they went to bed that he had
his stereo turned on throughout the night. (Tr. 456–457).
After Detective Davis interviewed [Petitioner] in the patrol car, Det. Davis also interviewed
other witnesses (Tr. 459). Because there were inconsistencies between the various statements Det.
Davis had taken, Sheriff Ronnie Skiles had Det. Davis transport [Petitioner] and Sansoucie
separately to the police station for further questioning as they had changed from being potential
witnesses to being suspects in the crime (Tr. 459).
As Det. Davis was transporting [Petitioner] to the station, [Petitioner] became agitated and
wanted to know why he had to go with him (Tr. 460). Det. Davis told him that they were
conducting an investigation and asked [Petitioner] if he wanted to “catch” who had killed his
mother (Tr. 460). On the way, [Petitioner] then asked Det. Davis “who’s going to get my mom’s
truck?” (Tr. 460). Det. Davis responded that it depended on whose name was on the title and no
further conversation took place (Tr. 460). They waited for 15 to 20 minutes for a juvenile officer
to arrive (Tr. 461).
A juvenile officer arrived at the police station and informed [Petitioner] of his rights in the
presence of [Petitioner’s] father, and an investigator for the Potosi Fire Marshal, James Holdman
(Tr. 249, 301). After each sentence, [Petitioner] initialed and signed the rights form (Tr. 302,
State’s Exhibit 66). After having been explained his rights, [Petitioner] agreed to talk (Tr. 302).
The additional information from this statement was that on the evening before the fire, [Petitioner]
and Sansoucie had taken some gas to the railroad tracks and burned a portion of the tracks (Tr.
306). Also, when Holdman asked [Petitioner] why he did not hear a struggle going on in his
mother’s bedroom, [Petitioner] stated that he had his stereo on loud as he slept (Tr. 308–309).
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[Petitioner] then asked Holdman if they could tell his mother’s cause of death, and
Holdman responded that a pathologist could be able to tell cause of death from an autopsy (Tr.
311–312). [Petitioner] then asked if his father would have to pay for the autopsy (Tr. 314). When
Holdman asked [Petitioner] if he had played a part in his mother’s murder, [Petitioner] said that if
he would have killed his mother, he would have let the fire burn up the blood and the evidence or
that he would have taken his mother out to the woods and then let the fire burn up the evidence
(Tr. 313–314). [Petitioner] admitted that he had problems with his mother, and stated that he had
threatened her in the past (Tr. 318).
[Petitioner’s] shoes were seized and an “accelerant sniffing dog” had alerted to the shoes
(Tr. 316–317). [Petitioner] stated that he got gas on his shoes the Tuesday before when he was
playing with a gas device and had caught his leg on fire burning his leg (Tr. 317).
Det. Davis then interviewed [Petitioner] a second time in the presence of [Petitioner’s]
father, a juvenile officer and Sheriff Skiles (Tr. 461). [Petitioner] gave a verbal and written
statement (Tr. 461, State’s Ex. 68). The second statement differed from the first statement with
Det. Davis in the patrol car (Tr. 461). [Petitioner] mentioned that they had been smoking marijuana
and that when they first ran out of the house, Sansoucie [then] yelled, “call the fire department”
(Tr. 462). [Petitioner] stated that he could not reach the phone and had to crawl out of the house
(Tr. 467). He also stated that only he and his uncle ran back into the house (Tr. 470).
At one point in the interview, when confronted with other witnesses’ statements,
[Petitioner] got up in a rage and said, “Come on Dad. Let’s get out of here” and that “[t]his is a
bunch of shit. They’re trying to pin something on me that I didn’t do” (Tr. 469).
A couple of days later, on December 7, 1998, [Petitioner] was arrested and taken to the
police station (Tr. 472). When the juvenile officer read [Petitioner] his rights, [Petitioner]
responded, “Yes. I want a fucking attorney” (Tr. 472–473). They ceased questioning after that (Tr.
473), however [Petitioner] volunteered that the investigators did not know what they were doing
and that only chemicals could burn down and not gas (Tr. 473).
An investigation of the fire and murder was conducted by the Washington County Sheriffs’
Department, the Potosi Fire Marshal’s investigators and from members of the Missouri State
Highway Patrol crime lab (Tr. 249, 504, 586, 601). Three gas containers that were sitting along a
concrete driveway approximately 30 feet from the home along with two partially melted soda
bottles, one containing a wick, were seized from the scene (Tr. 256, 260, 297). Gasoline was found
inside the soda bottles (Tr. 642).
There was no fire damage to the southern portion of the trailer, near [Petitioner’s] bedroom
(Tr. 273). It was determined that [Petitioner’s] bedroom door had been closed during the fire (Tr.
273). The fire damage had been contained to the upper portion of Rita Politte’s body, near the area
where Rita had suffered a fracture to her skull (Tr. 276, 278– 280). A fabric had been placed over
Rita’s face (Tr. 386). The fire near Rita’s body had burned hot enough and fast enough that it went
down the carpet and through the floor exposing the “floor joist” and taking out some of the wood
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flooring (Tr. 279). The fire was declared intentional and not accidental or naturally caused (Tr.
277, 282).
Blood was also discovered in Rita’s bedroom (Tr. 283–284). There was blood on her thigh,
and blood splatters on the doorway and just inside the door jam on the light switch (Tr. 283–284).
Blood ran down the walls meeting up with blood smears (Tr. 284). Based on the fire damage, it
was determined that the bleeding had occurred before the fire was set (Tr. 291). Blood on the light
switch was consistent with Rita’s profile (Tr. 617).
An autopsy revealed that Rita Politte was alive and breathing when the fire started and that
she had suffered a “linear V-shape skull fracture” causing a hemorrhage in the back of her brain
(Tr. 388). The cause of death was from carbon monoxide poisoning (Tr. 383).
A month after the murder, [Petitioner] spontaneously confessed in the juvenile detention
center, after he had tried to commit suicide that, “I haven’t cared since December 5. That’s when
I killed my mom.” (Tr. 654, 656, 669).
[Petitioner] did not testify but presented four witnesses to testify on his behalf (Tr. 703–
749). At the close of evidence and argument, the jury found [Petitioner] guilty of murder in the
second degree (L.F. 2). On April 19, 2002, [Petitioner] was sentenced in accordance with the jury’s
recommendation to a term of imprisonment to be served in the Missouri Department of Corrections
(Tr. 838)
Procedural History
Petitioner raised two claims on direct appeal: 1) the trial court erred in admitting his pre-
Miranda statements, and 2) trial court erred in admitting his post-Miranda statements. (ECF No.
21-12, passim; 21-14 at 1-2) On October 14, 2003, the Missouri Court of Appeals found both
claims to be without merit. Id. at 3-6. Petitioner admits that he did not seek post-conviction relief
under Missouri Supreme Court Rule 29.15. (ECF No. 1 at 19)
In 2020, Petitioner filed a petition for a writ of habeas corpus in state court. (Cole County
Decision) The Circuit Court of Cole County rejected Politte’s claims as procedurally barred, and
found the defaults were not excused by gateway innocence. (Cole County Decision at 9–12) In the
alternative, the Court denied Petitioner’s claims as meritless. (Cole County Decision) On August
22, 2021, Petitioner filed claims again in a habeas petition in the Missouri Court of Appeals,
Western District, Case No. WD84748, which was denied on September 1, 2021, without
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explanation. (ECF No. 21-90, 92–97) Petitioner presented the claims again unsuccessfully in a
habeas petition to the Missouri Supreme Court. (ECF No. 21-92, 93, 99)
On May 15, 2022, Washington County prosecutor filed a motion to vacate Petitioner’s
conviction pursuant to 547.031, R.S. Mo. See ECF No. 3-1, State v. Politte, No. 24R059900043.
On November 3, 2022, Petitioner filed a Petition for Writ of Habeas Corpus in this Court. (ECF
No. 1) On November 17, 2022, this Court granted a Motion to Stay and Abey to allow the state
court to resolve the issue presented in the motion to vacate. (ECF No. 17) Ultimately, the Missouri
Supreme Court granted a writ of prohibition, finding that “section 547.031 does not authorize the
Washington County prosecuting attorney to file a motion to vacate or set aside Mr. Politte’s
conviction” because Petitioner was convicted in St. Francois County. (ECF No. 18-1 at 4) The
Missouri Supreme Court ordered the circuit court to take no further action in that matter other than
to dismiss the Washington County prosecuting attorney’s motion to vacate or set aside Petitioner’s
conviction. (ECF No. 18-1) This matter is now fully briefed and ready for disposition.
II. 	STANDARD OF REVIEW
Pursuant to 28 U.S.C. § 2254, a district court “shall entertain an application for a writ of
habeas corpus on behalf of a person in custody pursuant to the judgment of a state court only on
the ground that he is in custody in violation of the Constitution or laws or treaties of the United
States.” 28 U.S.C. § 2254(a). “[I]n a § 2254 habeas corpus proceeding, a federal court’s review of
alleged due process violations stemming from a state court conviction is narrow.” Anderson v.
Goeke, 44 F.3d 675, 679 (8th Cir. 1995).
Federal courts may not grant habeas relief on a claim that has been decided on the merits
in state court unless that adjudication:
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(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the
facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d)(1)-(2). “A state court’s decision is contrary to . . . clearly established law if it
applies a rule that contradicts the governing law set forth in [Supreme Court] cases or if it confronts
a set of facts that are materially indistinguishable from a [Supreme Court] decision . . . and
nevertheless arrives at a [different] result.” Cagle v. Norris, 474 F.3d 1090, 1095 (8th Cir. 2007)
(quoting Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003)). A state court “unreasonably applies”
federal law when 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,” or “unreasonably
extends a legal principle from [the Supreme Court’s] precedent to a new context where it should
not apply or unreasonably refuses to extend that principle to a new context where it should
apply.” Williams v. Taylor, 529 U.S. 362, 407 (2000). A state court decision may be considered an
unreasonable determination “only if it is shown that the state court’s presumptively correct factual
findings do not enjoy support in the record.” Ryan v. Clarke, 387 F.3d 785, 790-91 (8th Cir. 2004)
(citing 28 U.S.C. § 2254(e)(1)).
A state court’s factual findings are presumed to be correct. 28 U.S.C. § 2254(e)(1); Wood
v. Allen, 558 U.S. 290, 293 (2010). Review under § 2254(d)(1) is limited to the record before the
State court that adjudicated the claim on the merits. Cullen v. Pinholster, 563 U.S. 170, 180-81
(2011). Clear and convincing evidence that state court factual findings lack evidentiary support is
required to grant habeas relief. 28 U.S.C. § 2254(e)(1); Wood, 558 U.S. at 293.
III. 	DISCUSSION
A. 	Procedural Default
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Under the doctrine of procedural default, “a federal court will not review the merits of
claims, including constitutional claims, that a state court declined to hear because the prisoner
failed to abide by a state procedural rule.” Martinez v. Ryan, 566 U.S. 1, 9 (2012). “A federal
habeas court generally may consider a state prisoner's federal claim only if he has first presented
that claim to the state court in accordance with state procedures.” Shinn v. Ramirez, 596 U.S. 366,
371 (2022); Franklin v. Hawley, 879 F.3d 307, 311 (8th Cir. 2018) (citing Murphy v. King, 652
F.3d 845, 849 (8th Cir. 2011)) (“A procedural default occurs when a prisoner violates a state
procedural rule and this violation serves as an independent and adequate state-law basis to uphold
the state courts' dismissal of a claim, thereby precluding consideration of federal claims on direct
appeal.”); 28 U.S.C. §2254(e)(2). When the prisoner has failed to do so, and the state court would
dismiss the claim on that basis, the claim is “procedurally defaulted.” Shinn, 596 U.S. at 371. “To
overcome procedural default, the prisoner must demonstrate ‘cause’ to excuse the procedural
defect and ‘actual prejudice’ if the federal court were to decline to hear his claim.” Id. (quoting
Coleman v. Thompson, 501 U.S. 722, 750 (1991)); Franklin, 879 F.3d at 311.
Here, the Missouri Court of Appeals issued an opinion affirming the judgment of
conviction and sentence on October 14, 2003. (ECF No. 21-100) Petitioner filed a motion for
rehearing or transfer, which was denied by the Missouri Court of Appeals on December 10, 2003.
Id. Petitioner failed to file a motion for discretionary transfer in the Missouri Supreme Court. Id.
Consequently, direct review was completed fifteen days later, on the first business day after
December 25, 2003, when the discretionary transfer motion was due. Petitioner admits that he did
not file a Rule 29.15 post-conviction relief motion. (ECF No. 1 at 19)
Petitioner filed his initial state habeas corpus petitioner in Cole County on March 6, 2020,
more than sixteen years after the completion of direct review. (ECF No. 21-101) The Cole County
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habeas petition presented essentially the same claims Petitioner now brings attacking the fire
science as “false and misleading.” Id. at 35-51. Likewise, Petitioner contended that trial counsel
was ineffective for not attacking the fire evidence at trial as “false and misleading,” as he also does
in this case. Id. at 58-72. The scientific reports upon which the state and federal habeas petitions
rely were prepared in 2015 and 2016, years before Petitioner used them in support of his 2020 state
habeas petition or this petition. (ECF Nos. 21-15, 21-16, 21-17) Petitioner now contends that the
factual basis of the fire science was not available until November 2020, when a letter from the
Highway Patrol Criminalist Supervisor was filed as part of the 2020 Cole County habeas petition.
(ECF No. 1 at 4-7)
The record, however, contradicts this. Petitioner had expert reports supporting his fire
science claims years before he chose to use them in a state habeas corpus action. Counsel for
Petitioner stated in an interview: “We’ve had this for years this key scientific evidence, but we
wanted to do the legwork to gather all of the other pieces of evidence we possibly could before he
went into court.” (ECF No. 21-102 at 13 (interview of Megan Crane)) Politte raised the claims in
the Cole County petition supported by those 2015 and 2016 reports (ECF Nos. 21-15 (Lentini
Report, dated 8/9/2016); 21-16 (Bieber Declaration, 9/13/2015), 21-17 (Bieber Report (undated))
before the letter he asserts provided the factual basis of his claims was filed as an exhibit in
response to his claims during the litigation of the Cole County habeas petition.
Petitioner also argues that the untimeliness of his habeas petition should be excused based
upon his actual innocence. (ECF No. 1 at 5) The Circuit Court of Cole County, however, addressed
Petitioner’s actual innocence claim and found that his petition did not contain any new evidence.
(Cole County Decision at 20-24) The Cole County Circuit Court emphasized that Petitioner
confessed the murder to three people and told a psychologist that he had set other fires during the
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previous year. Id. at 22. The Cole County Circuit Court further found these claims were
procedurally barred and without legal merit:
The prosecutor did not present false and misleading testimony by putting
on expert testimony that Petitioner now attacks with new opinion testimony, which
argues for different conclusions. Petitioner’s current expert agrees with the State’s
expert that the fire originated on the victim’s upper body. And Petitioner admitted
that he had gasoline on his shoes when he gave the shoes to the police. The fire
investigator who testified at trial indicated that although his dog could detect fewer
parts per thousand of a petroleum product than a gas chromatograph, the dog unlike
a gas chromatograph could not … tell what type of petroleum based product was
present. What the State presented was a dog alert on the shoes confirmed by a gas
chromatograph finding gasoline on the shoes, as interpreted by the analyst at the
time. Petitioner now alleges that the alkanes indicating gasoline, found by the gas
chromatograph, were really “noise” and that therefore the dog alert on the shoes
should have been considered unconfirmed. The crux of this argument is that
Petitioner’s current expert disagrees with the State’s interpretation of the gas
chromatograph results. This is not evidence of the use of false or misleading
testimony. Petitioner’s current expert also opines that it would be better practice to
call the cause of the fire undetermined because an accelerant was not found in the
fire debris even though it admittedly started on the victim’s upper body. Again this
is not evidence of the use of false or misleading testimony. It is the post-trial
presentation of opinion evidence, not evidence of knowing use of perjured
testimony. See McKim v. Cassady, 457 S.W.3d 831, 843-52 (Mo. App. W.D. 2015)
(rejecting claim based on presentation of expert after trial who disagreed with
defense expert and discussing cases in other jurisdictions rejecting such claims);
Napue v. Illinois, 360 U.S. 264 (1959) (noting that a constitutional violation results
from knowing use of perjured testimony); Gigilo v. United States, 405 U.S. 150
(1972) (false testimony that witness had not received a deal for his testimony
required reversal only if created reasonable probability the outcome 	of the
proceedings was changed). Here, there was no knowing use of false testimony.
Petitioner admitted he had gasoline on his shoes, and spontaneously
confessed to the murder. There is no disagreement that the fire started on the
victim’s upper body. There is no plausible argument to be made that the fire was
accidental. There was no finding of accidental cause. The victim did not
spontaneously combust after an attacker fractured her skull with a blunt instrument,
and covered her face with a material that burned into it. The burn pattern is the same
as a fire that Politte admittedly set with gasoline on nearby railroad tracks before
the killing. The claim is without merit as well as procedurally barred. See NFPA
921 Guide for Fire and Explosion Investigations 12-6 (“Ultimately, the decision as
to the level of confidence of data collected in the investigation or any hypothesis
drawn from the analysis of the data lies with the investigator.”). See e.g. State ex
rel. Barton v. Stange, 597 S.W.3d 661, 664 (Mo. 2020 (presentation of competing
blood spatter evidence did not show the petitioner was innocent and claim original
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testimony should have been excluded was frivolous citing State v. Barton, 240
S.W.3d 693, 704-05 (2014)). An evidentiary hearing could not change either of
these conclusions. The claim fails on undisputed material facts.
(ECF No. 21-89 at 26-28) Agreeing with the sound reasoning of the Cole County Circuit Court,
this Court finds no basis for Petitioner’s actual innocence claim. The decision was supported by
confession and physical evidence that remains unchallenged today.
Petitioner further argues that he is entitled to equitable tolling because he pursued his
claims with reasonable diligence and the state suppressed evidence. (ECF No. 1 at 11) He contends
that equitable tolling ended months after he filed his state habeas petition in March 2020, when
the respondent in that case filed the letter from Highway Patrol Criminalist Michael Baker in
response to the Petition in November 2020. Id.2 In the November 6, 2020 letter, Criminalist Baker
reported that that he would not now find gasoline on Petitioner’s shoes based on the absence of
alkanes in the chromatograph results, but that at the time of the analysis the “analyst would not
have known that alkanes were also necessary to confirm the presence of gasoline.” (ECF No. 21-
86) The Court notes that Petitioner had the factual basis of this claim based upon scientific reports
authored in 2015 and 2016 (ECF No. 21-15, 21-16, 21-17), yet he did not file his federal habeas
petition until November 2022. The statute of limitations ran out long before Petitioner filed his
state habeas petition in 2020, years after he possessed the reports that purportedly support the claim
in the petition. Indeed, Petitioner could have filed this petition in 2016 (or earlier) based upon these
scientific reports, even ignoring the fact that his current attack is based upon fire science that was
available at trial.
2 On November 16, 2022, the Missouri Attorney General filed a letter from Missouri State Highway Patrol (MSHP)
Crime Lab criminalist Michael J. Baker as an exhibit to a pleading in Cole County Circuit Court.
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The Court holds that there is no basis for equitable tolling because Petitioner has not shown
diligence or any extraordinary circumstances beyond his control that made it impossible for him
to file his federal habeas petition. “Equitable tolling is proper only when extraordinary
circumstances beyond a prisoner's control make it impossible to file a petition on time. Further,
equitable tolling may be appropriate when conduct of the defendant has lulled the plaintiff into
inaction.” Kreutzer v. Bowersox, 231 F.3d 460, 463 (8th Cir. 2000) (citations omitted). Petitioner
has not shown diligence because he could have filed this petition in 2016 (or earlier) when
scientific reports were available and because Respondent did not lull Petitioner into not filing an
appeal or habeas petition. Thus, the Court finds that Petitioner’s current habeas petition was
untimely and must be denied. Out of an abundance of caution, the Court, however, addresses each
claim on the merits.
B. 	Claims I and II
In Claim I, Petitioner argues that the State violated due process when it presented “false
and misleading” testimony about accelerants on his shoes and about the cause of the fire, which
led the State to obtain tainted confession. (ECF No. 1 at 35-50 (citing Napue v. Illinois, 360 U.S.
264, 269 (1959); Giglio v. United States, 405 U.S. 150 (1972)) Petitioner contends that the State
presented testimony from multiple expert witnesses that there was gasoline on his shoes and the
fire was ignited with gasoline, both of which the State either knew or should have known was false
in violation of his Fourteenth Amendment right to due process. Specifically, Fire Marshal Bob
Jacobsen and MSHP Crime Laboratory Criminalist Carl Rothove testified that Petitioner had
gasoline on his shoes, and Fire Marshall Holdman testified that the fire was intentionally set using
an accelerant. Even though it was not presented to the Missouri court below in a Rule 29.15 motion,
Petitioner asserts that this Court may reach his Brady and Napue claims and grant relief because
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Petitioner can both demonstrate cause and prejudice, as well as his actual innocence. (ECF No. 1
at 41)
In Claim II, Petitioner contends that his conviction violates his due process rights because
it was “based entirely on false scientific testimony that there was gasoline on his shoes and
unreliable expert testimony that the fire was ignited with gasoline.” (ECF No. 1 at 43) Petitioner
references a November 6, 2020 letter from Michael J. Baker, Criminalist Supervisor for the Crime
Laboratory Division for the Missouri State Highway Patrol, which Petitioner claims casts doubt
on the conclusion that his shoes had gasoline present: “Under the current MSHP Crime Laboratory
ignitable liquids procedure, the presence of alkanes is required to render a positive conclusion;
alkanes were not identified during the case record review. In absence of this information, I would
report this case as no ignitable liquids were identified on the shoes.” (ECF No. 3-3) Petitioner
argues that the false gasoline testimony was prejudicial because it was the only physical evidence
that tied Petitioner to the crime and because it went unrebutted by the defense as there was no
contravening defense expert. (ECF No. 1 at 46) Petitioner asserts that, absent the physical evidence
to support his conviction, all that remains is “speculative, biased evidence.” (ECF No. 1 at 49)
Claims I and II are procedurally barred and the state court’s rejection of those claims is
entitled to deference under 28 U.S.C. § 2254. Claim II is Teague barred because the theory that a
change in scientific interpretation, or a competing scientific interpretation, after trial can result in
a due process violation, without knowing use of perjured testimony, was not dictated by precedent
at the time the case was on direct appeal. See Edwards v. Vannoy, 593 U.S. 255, 265 (2021) (A
rule is new unless it was “dictated by precedent existing at the time the defendant's conviction
became final.” Teague, 489 U.S. at 301 (plurality opinion). In other words, a rule is new unless, at
the time the conviction became final, the rule was already “apparent to all reasonable jurists.”
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Lambrix v. Singletary, 520 U.S. 518, 528 (1997)). Indeed, the rule suggested by Petitioner is not
dictated even now. See Rhodes v. Smith, 950 F.3d 1032, 1037, n.2 (8th Cir. 2020) (declining to
determine if such a claim exists: “Like the district court, we assume for purposes of the argument,
but do not decide these claims are constitutional violations.”).
Likewise, the Court also finds these claims are without legal merit. The evidence presented
was not false or misleading. As noted by the Circuit Court of Cole County,
Petitioner admitted he had gasoline on his shoes, and spontaneously
confessed to the murder. There was no disagreement that the fire started on the
victim’s upper body. There is no plausible argument to be made that the fire was
accidental. There was no finding of a possible accidental cause. The victim did not
spontaneously combust after an attacker fractured her skull with a blunt instrument,
and covered her face with a material that burned into it. The burn pattern is the same
as a fire that [Petitioner] admittedly set with gasoline on nearly railroad tracks
before the killing. The claim is without merit as well as procedurally barred. See
NFPA 921 Guide for Fire and Explosion Investigation 12-6 (“Ultimately, the
decision as to the level of confidence of the data collected in the investigation or
any hypothesis drawn from the analysis of the data lies with the investigator.”). See,
e.g., State ex rel. Barton v. Stange, 597 S.W.3d 661, 664 (Mo. 2020) (presentation
of competing blood spatter evidence did not show the petitioner was innocent and
claim original testimony should have been excluded was frivolous citing State v.
Barton, 240 S.W.3d 693, 704-05 (2014)). An evidentiary hearing could not change
either of these conclusions. The claim fails based upon undisputed material facts.
(Cole County Decision at 27-28) The Court finds that the state court decision was not contrary to,
or involved an unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States, nor was an unreasonable determination of the facts in light of
the evidence presented in the state court proceeding. Petitioner admitted the presence of gasoline
on his shoes and the scientific reports do not negate that possibility. Petitioner has not shown that
false testimony was presented and thus has not shown an unreasonable application of federal law.
The Court denies habeas relief on Claims I and II because they are procedurally barred and fail on
the merits.
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III. 	Claim III
Petitioner argues that the prosecution’s closing arguments misrepresented the evidence,
thereby violating his due process rights. (ECF No. 1 at 50) Specifically, Petitioner asserts that the
prosecutor took a “dramatic leap” in closing arguments when he told the jury that Petitioner poured
gasoline on his mother’s face and lit her on fire. (ECF No. 1 at 50) While arguing mens rea to the
jury, the prosecutor asserted: “[C]ooly [sic] reflecting is going outside and grabbing those empty
gas cans . . ., putting something her face, dousing it with . . . gasoline, and setting her on fire. . . .
That’s clearly deliberation.” (ECF No. 1 at 50 (citing T. 764))
This claim was not raised on direct appeal and, therefore, is procedurally barred. Petitioner
also did not raise this claim in his state habeas petition in Cole County. See Cole County Decision.
Politte presented this claim in his petition to the Missouri Supreme Court (ECF No. 21-99 at 19-
20), but the Missouri Supreme Court denied the petition. (ECF No. 21-92)
As to the merits, Petitioner complains that the prosecutor stated at trial that Petitioner put
something on his mother’s face, poured gasoline on it and lit it, setting her fire. (ECF No. 1 at 50)
On habeas review, the Cole County court found this was a reasonable inference. The prosecutor
stated that “[a] fabric had been placed over Rita’s face (Tr. 386).” (ECF No. 21-89 at 8) Trial
counsel did not object when the prosecutor referenced Petitioner placing something on his
mother’s face. See ECF No. 21-5 at 42. Likewise, the jury was instructed that attorney arguments
are not evidence. (ECF No. 21-11 at 5 (Instruction No. 12)) The jurors are presumed to follow the
instruction given by the trial court. State v. Garrison, 292 S.W.3d 555, 560–61 (Mo. Ct. App.
2009); State v. Wheeler, 219 S.W.3d 811, 816 (Mo .App. 2007); State v. Davis, 122 S.W.3d 690,
693 (Mo. App. 2003). See ECF No. 21-13 at 11-12; ECF No. 21-89 at 8.
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The Court finds that, contrary to Petitioner’s argument, the trial court was not obligated
under the due process clause to interfere with an argument that the defense counsel at trial did not
find objectionable. See Carter v. Armontrout, 929 F.2d 1294, 1297, n.2 (8th Cir. 1991) (citing
Willis v. Kemp, 838 F.2d 1510 (11th Cir.1988))(No due process claim arises when the defendant's
counsel, as a matter of reasonable trial strategy, decides not to object to prosecutorial misconduct.
“In such a situation, if the trial court sua sponte granted a mistrial, the defendant's right to proceed
to verdict once jeopardy had attached would be violated. Further, the sua sponte issuance of a
curative instruction could interfere with the defendant's trial strategy.”). The Court holds that the
prosecutor’s argument was not improper and the trial court did not violate Petitioner’s due process
rights by failing to insert itself into the argument when the defense did not object. This claims is
without merit as well as procedurally barred. The Court defers to the decision of the Missouri state
court, finds no unreasonable application of clearly established Federal law and denies this claim.
IV. 	Claim IV
In Claim IV, Petitioner asserts that his Fourteenth Amendment right to due process was
violated when police intimidated Joshua Sansoucie, Petitioner’s friend and the only other person
present on the night of Rita’s death, from testifying on Petitioner’s behalf. (ECF No. 1 at 55)
Petitioner contends that Sansoucie provided police with an account of the evening similar to that
provided by Petitioner. Id. Petitioner further argues that law enforcement continually approached
Sansoucie, using various coercive techniques, to try to get him to flip on Petitioner but he never
did. (ECF No. 1 at 55-56) Petitioner contends that Sansoucie ultimately was coerced into not
testifying on Petitioner’s behalf. (ECF No. 1 at 58)
The Circuit Court of Cole County found that this Claim IV has been defaulted procedurally
and was without merit:
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Potential witness [Joshua] Sansoucie’s affidavit, presented by Petitioner, in this
case says that Sansoucie was in the hall outside the courtroom ready to testify, but
defense counsel did not call him, and thus refutes the allegation that the police
intimidated him into not testifying. In the affidavit, Sansoucie says he wakened in
the night to hear a popping noise and could not see whether Petitioner was in his
bed. But he also says that he watched footage of himself saying that “Bernie
[Petitioner Michael Politte] was not in his bed when I woke up in the middle of the
night”, as opposed to his not being able to see if he was in bed, and that he never
would have believed he said that had he not seen it on film because his current
memory is that he has been saying the same thing all along. The affidavit refutes
the claim that the prosecution intimidated Sansoucie into not testifying. In addition,
Sansoucie’s testimony would have been unhelpful to the defense, and at worst
would have been damaging to the defense, if he had said that Petitioner was not in
his room at the time he heard a noise in the night, as opposed to saying he could not
tell. The claim as well as being procedurally barred is refuted by Petitioner’s own
exhibit. And this cannot be changed by an evidentiary hearing. The claim is refuted
by undisputed material evidence.
(Cole County Decision at 28-89)
The Court holds that this claim is procedurally barred and the rejection of that state court
claim is entitled to deference under 28 U.S.C. §2254. Based upon Sansoucie’s affidavit presented
in the state court, Petitioner has not identified any potentially exculpatory testimony that Sansoucie
would have provided and, therefore, no due process violation. The Court defers to the well-
reasoned decision of the Missouri state court, finds no unreasonable application of clearly
established Federal law and denies this claim.
V. 	Claim V
Petitioner asserts that his right to due process under the Sixth and Fourteenth Amendments
was violated when the trial judge interfered with the jury’s deliberations. (ECF No. 1 at 64)
Petitioner alleged in his habeas petition to the Circuit Court of Cole County that the trial judge
summoned an individual hold-out juror from deliberations and spoke to him privately about the
case. Petitioner argues that, but for this conversation with the trial judge, the hold-out juror would
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have continued to dissent from the other jury members and Petitioner’s trial may have resulted in
a hung jury or acquittal. (ECF No. 1 at 68)
The Circuit Court of Cole County found that this claim was procedurally barred and
without legal merit:
In claim [V] of the current [state court] petition Petitioner alleges the trial court
violated due process by improperly interfering with the jury’s decision making.
Petitioner alleges that the trial judge called a hold-out juror, Mr. Peterson, out of
the jury room and spoke to him privately in chambers. Petitioner further alleges that
the judge told the juror that he had to make up his mind and come to a decision and
that this convinced the juror to vote with the rest of the jury. Amended Habeas
Petition at 109-114.
In an interview with an investigator for the Office of the Attorney General,
Juror Peterson indicated that before he spoke with the judge, he believed that
Petitioner was guilty and needed to go to jail, but he did not believe Petitioner acted
alone, and that he thought it was unjust to convict only Petitioner. Juror Peterson
also told the investigator that he also met with the judge after the trial was over. In
interviews with an investigator from the Office of the Attorney General, Judge
Pratte and Marshals Horn and Francis indicated that Judge Pratte did not call Juror
Peterson into chambers during deliberations, and that he had never done anything
like that in any case. In his interview with an Attorney General’s Office
investigator, Juror Peterson referred to being “pretty sure” and “almost one hundred
percent positive” that he met with the judge during deliberations as well as after
trial, before saying “I’m sure” and “it’s been a long time.” It is most likely that
Juror Peterson remembers his meetings with the judge after trial as being a meeting
during deliberations, and a meeting after trial. Judge Pratte was adamant that the
alleged meeting with Juror Peterson during deliberations did not happen, it would
have been inappropriate, and he would not have done it. It is highly unlikely that
the judge and the two marshals all misremember the events. Judges are presumed
to know and follow the law. Worthington v. State, 166 S.W.3d 566, 573 (Mo. 2005).
There is nothing here that overcomes the presumption, even if Peterson were to
testify as Petitioner alleges.
But in any event the claim is procedurally barred. And [Petitioner] cannot
show cause and actual prejudice or gateway actual innocence to excuse the default.
So, any dispute in recollections on this point is not material to the outcome of the
case.
(Cole County Decision at 37-38)
Claim V is procedurally barred and the state court’s rejection of this claim on the merits is
entitled to deference under 28 U.S.C. § 2254. It is not for this Court to second guess the credibility
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determination of the state court which found the judge and court personnel believable. See Smulls
v. Roper, 535 F.3d 853, 864 (8th Cir. 2008) (citing Rice v. Collins, 546 U.S. 333, 338-39 (2006))
(“The deference owed to the state trial court pursuant to § 2254(e)(1) includes deference to its
credibility determinations. A federal court can only grant habeas relief if the state court's credibility
determinations were objectively unreasonable based on the record.”). The Court holds that the
state court’s factual determination was not unreasonable and did not produce a result contrary to
federal law.
VI. 	Claim VI
In Claim VI, Petitioner maintains that his Fifth and Sixth Amendment rights were violated
by the admission at trial of his custodial statements to law enforcement because he was not
provided his Miranda3 rights even though he was in custody. (ECF No. 1 at 69) Petitioner notes
that the Washington County Prosecuting Attorney now agrees that Petitioner was in custody at the
time of these statements and that their admission at trial violated his constitutional rights. Id.
Petitioner admits that the statements at issue “were not a confession or admission” but nevertheless
asserts that the state used these statements against Petitioner at trial. Id.
Petitioner challenged the admission of his statements to police on direct appeal. See ECF
No. 21-14 at 6, ED81197. The Court of Appeals found that Petitioner was not in custody when he
answered the initial, investigatory questions at the crime scene. (ECF No. 21-14 at 6) Rather, when
suspicion focused on him and he was placed in custody and taken to the police station, he was
Mirandized before further questioning. Id. The state court’s rejection of this claim on the merits is
entitled to deference under 28 U.S.C. § 2254. See ECF No. 21-14. The Court does not second guess
that state court determination that the detective’s interview with Petitioner, the first person he
3 Miranda v. Arizona, 384 U.S. 436 (1966).
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interviewed at the scene as part of information gathering, was not a custodial interview. This
decision is consistent with a reasonable determination of the facts and application of Miranda v.
Arizona, 384 U.S. 436 (1966). The Court denies relief on Claim VI.
VII. 	Claim VII
In Claim VII, Petitioner argues that his right to due process was violated because he was
certified to be tried as an adult partially based on evidence that was “meaningless and/or false.”
(ECF No. 1 at 69) Petitioner contends that the presentation of a bloody tire iron at the juvenile
adjudication proceeding was improper prior to testing the tire iron for DNA. (ECF No. 1 at 69-70)
Petitioner asserts that “[h]ad the judge known the tire iron was not the murder weapon—and [did]
not tie [Petitioner] to the crime—[Petitioner] may not have been certified as an adult.” (ECF No.
1 at 70) Further, he contends that “[i]f [Petitioner] had not been adjudicated as a juvenile, he
inevitably would have had a better result.” Id. That is, if he had been convicted in juvenile court,
then he would have only lost a handful of years, rather than 23 years. Id.
Petitioner admits this claim was not previously presented throughout the state courts. (ECF
No. 1 at 70) Petitioner, however, argues that his actual innocence overcomes his procedural default.
Id. As previously discussed, the Court defers to the state court finding that Petitioner has not
demonstrated actual innocence. Therefore, Claim VII is procedurally defaulted. In addition, the
claim is also without merit.
The Court finds no basis in law for Petitioner’s argument. Petitioner critiques the use of
non-DNA tested evidence during the juvenile certification process. However, the nine-factor
judicial certification process is different than the admission of evidence at trial. See Mo. Rev. Stat.
211.071; State v. Nathan, 404 S.W.3d 253, 259 (Mo. 2013) (“The plain language of these sections
demonstrates that the focus in a certification proceeding is on the juvenile, not the conduct alleged
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in the petition.”). That is, “[a] petition pursuant to sections 211.031.1(3) and 211.091 serves only
to invoke the juvenile court's exclusive jurisdiction by identifying the individual as being younger
than 17 years old and alleging that the child has engaged in conduct that would be a crime if
committed by an adult.” Nathan, 404 S.W.3d at 259. Thus, given that the focus in a certification
proceeding is on the characteristics of the child and does not focus on the guilt of the underlying
offense, the Court finds no basis for habeas relief simply because an item was not DNA tested
prior to the adult certification petition. Petitioner has not identified any federal statute, law, or
constitutional violation other than a nebulous due process claim, which is not borne out in the facts.
Therefore, the Court denies Claim VII.
VIII. Claim VIII for ineffective assistance of counsel claim
A. Ineffective Assistance of Counsel under Strickland
To succeed in bringing an ineffective-assistance claim in the first instance, a petitioner
must 	show 	“both 	(1) 	that 	counsel's 	representation 	fell 	below 	an 	objective 	standard 	of
reasonableness in light of prevailing professional norms and (2) that there is a reasonable
probability that, but for counsel's unprofessional errors, the result of the proceeding would have
been different.” Springs v. Payne, 95 F.4th 596, 601 (8th Cir. 2024) (citing Strickland, 466 U.S. at
687-88, 694 (internal quotations omitted).
Between Strickland and § 2254, the court’s review of the denial of a § 2254 petition based
on ineffective assistance is “doubly deferential.” Cullen v. Pinholster, 563 U.S. 170, 190 (2011).
“If this standard is difficult to meet—and it is—that is because it was meant to be.” Burt v. Titlow,
571 U.S. 12, 20 (2013) (internal quotation marks omitted). “We will not lightly conclude that a
State's criminal justice system has experienced the ‘extreme malfunction’ for which federal habeas
relief is the remedy.” Id.
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Strickland prejudice exists when there is “a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different.” Dorsey v.
Vandergriff, 30 F.4th 752, 757 (8th Cir. 2022). This prejudice standard requires a “substantial, not
just conceivable” likelihood of a different result. Harrington v. Richter, 562 U.S. 86, 112 (2011).
“This does not require a showing that counsel's actions ‘more likely than not altered the outcome,’
but the difference between Strickland’s prejudice standard and a more-probable-than-not standard
is slight and matters ‘only in the rarest case.’” Id. at 111-12. The Court assesses “whether there is
a substantial likelihood of a different result by reweighing the aggravating evidence against the
totality of available mitigating evidence.” Springs, 95 F.4th 596, 601–02 (citing Wiggins v. Smith,
539 U.S. 510, 534 (2003)).
1. 	Trial counsel was not ineffective for failing to present expert
testimony about the accelerant and arson evidence (Claim VIII,
Point A, Argument 1)
Petitioner argues that defense counsel was ineffective for not investigating, developing, or
presenting a defense to the State’s accelerant and arson evidence against Petitioner. (ECF No. 1 at
74) Petitioner asserts that “[a]rson and accelerant (gasoline) testimony was central to the State’s
case against [Petitioner] … [b]ut defense counsel did essentially nothing to investigate, develop,
or present a defense to this State trial theory and key evidence, despite the fact that a compelling
defense was readily available given that the evidence was in fact false.” (ECF No. 1 at 74)
Petitioner contends that the State’s strongest evidence against him was the gasoline and fire science
evidence, which was “extremely weak.” (ECF No. 1 at 75-76) Petitioner emphasizes that this case
involved little other than gasoline on Petitioner’s shoes; his counsel had no knowledge of arson
cases; he did minimal or no investigation of the fire evidence and underlying science; and he was
inexperienced trying homicide cases. (ECF No. 1 at 76) Petitioner argues that trial counsel should
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have had an expert perform an independent analysis of the State’s forensic evidence but instead
“accepted the State’s unreliable conclusions, overlooked the fact that laboratory testing of samples
from the scene did not show gasoline, or any accelerant, and at bottom, failed to meaningfully
perform their adversarial function.” (ECF No. 1 at 77) Petitioner further asserts that his counsel
relied solely upon his cross-examination of the State’s expert witnesses, rather than securing his
own experts who could test the gasoline evidence. (ECF No. 1 at 78)
On habeas review, the Circuit Court of Cole County found that counsel was not ineffective:
Counsel made reasonable strategic decisions and Petitioner was not
prejudiced. Under the Strickland test, Petitioner would have to show that counsel’s
actions were outside the wide range of professional competence, and that but for
the alleged incompetence there is a reasonable probability the outcome of the
proceeding 	would 	have 	been 	different. 	The 	evidence 	in 	this 	case 	was
overwhelming, even without Petitioner’s spontaneous confession in the context of
a suicide attempt that he had killed his mother. Counsel did the best he could under
the circumstances. There is no reasonable probability the outcome would have been
different had he tried the case differently. Petitioner alleges trial counsel was
ineffective for several reasons. All are without merit.
There was no “false fire evidence” here to challenge. Petitioner’s own expert admits
the fire started on the victim’s upper body in the area where her skull had been
fractured by blunt trauma. Petitioner admitted to the police that there was gasoline
on his shoes from a fire that he started earlier, and that he set his leg on fire in the
process. He admittedly started still another fire with gasoline on the railroad tracks
the evening before the murder. Petitioner’s expert claims that the State’s expert
mistakenly 	identified 	“noise” 	as 	alkanes 	in 	the 	gas 	chromatograph 	result,
supporting the conclusion of the presence of gasoline, and that therefore the
accelerant dog sniff of the shoes was unconfirmed. Petitioner’s expert also claims
that it was bad practice to conclude that an accelerant was used from burn patterns,
without a chemical test showing the presence of an accelerant.
Any attack on the presence of gasoline on Petitioner’s shoes would have
been unconvincing in light of Petitioner’s admission that there was gasoline on his
shoes. Similarly, any attempt to argue the fire was anything but deliberately set
would have been pointless. There was no evidence of any natural or accidental
cause of the fire. And the downward burn pattern of the fire was the same burn
pattern of the gasoline fire that Petitioner admittedly set on nearby railroad tracks
before the murder.
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Counsel acted competently and there was no prejudice. The claim fails
under Strickland v. Washington, 466 U.S. 668 (1984) as well as being procedurally
barred. No evidentiary hearing could change that.
(Cole County Decision at 29-30) The Court holds that the Cole County Circuit Court reasonably
applied Strickland. The state court determination that trial counsel’s performance was competent
is entitled to deference, particularly in light of Petitioner’s admission that he had gasoline on his
shoes and the evidence that the fire was set with an accelerant. Petitioner has not shown that trial
counsel’s performance was prejudicial to this case in light of Petitioner’s confession. Claim VIII,
Point A, Argument 1 fails.
2. 	Trial counsel was not ineffective for failing to present evidence
about Petitioner’s relationship with his mother (Claim VIII, Point
A, Argument 2)
Petitioner states that trial counsel was ineffective for failing to investigate and present
evidence rebutting the State’s weak and false theory regarding his motive to kill his mother. (ECF
No. 1 at 81) Notably, Petitioner argues that, if counsel had interviewed Derek Politte, he would
have learned that Derek thought Petitioner was a good kid and was not threatening his mother.
(ECF No. 1 at 81) Likewise, Petitioner maintains other family and friends—Chrystal Politte,
Melonie Politte, Melinda Glore, Michael Glore, Joshua Poucher, and Tammy Nash—would have
testified regarding Petitioner’s close relationship with his mother. Petitioner asserts trial counsel
also should have investigated and presented evidence that Petitioner was not violent. (ECF No. 1
at 83)
The Circuit Court of Cole Couty addressed this argument in its decision on Petitioner’s
state habeas petition:
The claim that counsel should have presented evidence of a loving
relationship between Petitioner and his mother, and that counsel was ineffective for
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not doing so, is procedurally barred and without merit. Petitioner, according to his
current expert, was institutionalized for previously threatening to kill his mother.
According to an interview with a coworker of the victim, the victim was afraid to
go home because of threats by her son, Petitioner, because he had physically
assaulted her by hitting her. Further the interview indicated that the victim wanted
her son to live with her brother because she could not handle him, she wanted him
to stay in a psychiatric center as long as possible because she was afraid of him, her
son had told her that he would “burn the trailer down around her”, and one week
prior to her death he had caught the yard on fire. The coworker also stated the victim
told her that Petitioner wanted a car and his father told her that if he did not have to
pay child support he could have one. Id. And she said that when Petitioner returned
from visiting his father in St. Louis he told his mother that if she wasn’t around he
could have a car. Id. That would have confirmed the testimony of Mr. Holdman
that Petitioner had told him that he had threatened his mother on a few occasions.
T Tr. 318.
There was no real evidence of a loving relationship to put on from people
who had actual knowledge of what was going on in the home. Attempting to put on
such evidence would have opened the door to evidence of Petitioner’s past threats
against his mother, including threats to kill her. “Generally the selection of
witnesses and the introduction of evidence are questions of trial strategy and
virtually unchallengeable.” State v. Kenley, 925 S.W. 2d 250, 266 (Mo. 1997).
Counsel acted reasonably, and there was no prejudice. The claim is without legal
merit as well as procedurally barred, and no evidentiary hearing can change that.
(ECF No. 21-89 at 32-33)
The Court agrees that trial counsel’s strategic decision not to present testimony regarding
Petitioner’s relationship with his mother is not deficient performance after federal habeas review.
See Worthington v. Roper, 631 F.3d 487, 500 (8th Cir. 2011) (“Ordinarily, we consider strategic
decisions to be virtually unchallengeable unless they are based on deficient investigation.”).
“‘Decisions relating to witness selection are normally left to counsel's judgment, and this judgment
will not be second-guessed by hindsight.’” Hanes v. Dormire, 240 F.3d 694, 698 (8th Cir.2001)
(quoting Williams v. Armontrout, 912 F.2d 924, 934 (8th Cir.1990) (en banc)). If defense counsel
presented testimony regarding Petitioner’s supposedly loving relationship with his mother, then it
would certainly have opened the door to the prosecution presenting testimony that he had
repeatedly threatened his mother, as well as his motive for killing his mother. See Forrest v. Steele,
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764 F.3d 848, 859 (8th Cir. 2014) (Here, the record shows, and the state circuit court found,
defense counsel's decision was a strategic one, based on justifiable concerns about the helpfulness
(and potential harmfulness) of Dr. Cunningham's testimony. Defense counsel's decision based on
this risk calculation does not fall outside the bounds of Strickland.”) The Court finds that Petitioner
has not overcome the strong presumption that counsel acted reasonably or that the result would
have been different but for this decision. Claim VIII, Point A, Argument 2 fails.
3. 	Trial 	counsel 	was 	not 	ineffective 	for 	failing 	to 	challenge
Prosecutor’s claim that Petitioner was a “firebug” (Claim VIII,
Point A, Argument 3)
Petitioner argues that his counsel was ineffective because he did not oppose the
characterization of Petitioner as a “firebug,” which was presented through the testimony of Fire
Marshal Holdman. (ECF No. 1 at 84) Petitioner contends that the testimony made it appear that he
played with fire more than normal children and that his trial counsel was ineffective for not
presenting any evidence that such behavior was typical of teens in the country. (Id.)
Petitioner did not present this claim in state court in the ordinary course of review, and it
is procedurally barred. He presented it as part of his Petition to Missouri Supreme Court (ECF No.
21-99, ¶ 104), which was denied. (ECF No. 21-92)
As to the merits, the Court finds no ineffective assistance of counsel under Strickland.
Rather, trial counsel made a strategic decision not to introduce any testimony disputing that
Petitioner was a “firebug” because he was aware that it would have opened the door to otherwise
excluded evidence regarding Petitioner’s fire-starting propensities. See Williams v. Roper, 695
F.3d 825, 838 (8th Cir. 2012) (Court found no deficient performance under Strickland where
“[n]ew testimony from a psychiatrist would have opened the door to rebuttal testimony, and new
evidence of the defendant's dysfunctional family—serious substance abuse, mental illness, and
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criminality—might 	have 	caused 	the 	jury 	to 	conclude 	that 	the 	defendant 	was 	beyond
rehabilitation.”). That is, the trial court had excluded evidence that Petitioner admitted setting a
garage on fire, and that the fire ignited the woods and burned into another county. Trial Transcript,
ECF No. 21-1 at 14-16. Further, Petitioner self-identified as a “firebug” when mocking a fire
investigator’s lack of knowledge about what caused the fire on his mother to burn downward. Trial
Transcript, ECF No. 21-1 at 161. The Court finds no deficiency under Strickland in counsel’s
performance because he did not make the implausible and risky argument that Petitioner’s fire
proclivities were normal. Finally, the Court defers to the decision of the Missouri Supreme Court.
(ECF No. 21-92) The Court finds no basis for relief under Claim VIII, Point A, Argument 5.
4. 	Trial counsel was not ineffective for failing to challenge Petitioner’s
confession (Claim VIII, Point A, Argument 4)
Petitioner claims that trial counsel failed to properly challenge Petitioner’s confession
where he said, “‘I haven’t cared since December 5 th . That’s when I killed my mom.” (ECF No. 1
at 84) Petitioner notes that the prosecutor referenced this confession in both the beginning of his
opening statement, as well as in his closing statement. Id. Petitioner maintains that trial counsel
should have investigated, developed, and presented a defense to Petitioner’s confession, which
occurred after a suicide attempt. Specifically, Petitioner asserts that trial counsel “should have
done one of the following: (1) adequately cross-examined the State’s witnesses about [Petitioner’s]
statements, (2) put [Petitioner] on the stand, who was eager to testify in his own defense, and/or
(3) consulted with and presented a psychologist expert to explain [Petitioner’s] behavior and
undercut the State’s presentation of [Petitioner’s] statements to the jury[.]” (ECF No. 1 at 86)
Petitioner contends that his trial counsel’s failure to hire a mental health expert as to his confession
constituted deficient performance.
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The Circuit Court of Cole County addressed this issue in response to Petitioner’s state
habeas petition and found the decision to not call a confession expert to be reasonable trial strategy:
This is really a claim that counsel should have called an expert to comment on the
credibility of Petitioner’s spontaneous confession and his other incriminating
statements. Experts are prohibited from commenting on credibility. State v. Ellis,
512 S.W.3d 816, 839 (Mo. App. W.D. 2016). Counsel could not have called an
expert to explain away Petitioner’s confession and incriminating statements.
Additionally, the expert report provided by Petitioner is damaging to him. Resp. SJ
Ex. 18. The report details Petitioner’s comments before the murder, for saying that
he was going to kill his mother then kill himself. And the report states that Petitioner
told the expert that he did make the statement before the murder. This information
and other damaging information was successfully kept out of the trial. An expert
like the one presented in the exhibit to the petition would have opened the door to
such harmful evidence. Counsel acted reasonably in not presenting such an expert,
and there was no prejudice. The claim is without merit. Strickland v. Washington,
466 U.S. 668 (1984). And the claim is procedurally barred.
(ECF No. 21-89 at 32)
Again, the Court finds that the Cole County Circuit Court reasonably applied Strickland
and this Court gives deference to the state court decision. Trial counsel made a strategic decision
not to open the door to a damaging expert report in an effort to try to explain away his confession.
Moreover, the expert report would not have been helpful because the expert could not have testified
regarding the credibility of Petitioner’s confession. See State v. Wright, 247 S.W.3d 161, 168 (Mo.
Ct. App. 2008) (expert testimony relating to the credibility of a confession improperly invades the
jury's proper realm.). Thus, the Court finds the trial court’s performance was reasonable under
Strickland because there was little benefit and much risk to the presentation of expert confession
testimony. Claim VIII, Point A, Argument 4 is denied.
5. 	Trial counsel was not ineffective for failing to “challenge the State’s
characterization of [Petitioner] as a remorseless killer” (Claim VIII,
Point A, Argument 5)
At trial, the prosecutor used Petitioner’s reaction to his mother’s death against him,
portraying Petitioner as a remorseless killer. (ECF No. 1 at 86) Notably, Petitioner was an adult at
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the time of trial but only 14 years old when his mother died four years earlier. (ECF No. 1 at 86-
87) Petitioner argues that trial counsel should have objected to the State’s “prejudicial and
unreliable characterization of his client” and failing to rebut this character assassination. (ECF No.
1 at 87) Petitioner argues that his counsel could have provided lay witness testimony regarding his
distress over losing his mother; expert Dr. Aaron could have contextualized Petitioner’s reaction
as an appropriate response given his age and trauma; and expert Jim Trainum could have helped
the jury understand how and why law enforcement “so egregiously misjudged” Petitioner. (ECF
No. 1 at 87-88) Petitioner argues that “[w]here mental state and motive of a defendant is at issue,
the failure to consult with an appropriate expert may constitute ineffective assistance.” (ECF No.
1 at 89) Petitioner asserts that, had trial counsel provided expert testimony, then the jury would
have sympathized with him and the result of the trial would have been different. Id.
This claim is procedurally barred. Petitioner did not present this argument to the Circuit
Court of Cole County as part of his state habeas petition. Petitioner, however, presented this claim
to the Missouri Supreme Court and it was denied. (ECF No. 21-92, ECF No. 21-99)
As to the merits, the Court finds that Petitioner has not identified any deficient performance
by his trial counsel. Petitioner complains that his counsel chose not to employ certain expert
testimony, but Petitioner does not identify how the expert testimony would have affected the
outcome of the case other than the jury would have sympathized with him. Petitioner does not
demonstrate how any additional sympathy for him would have been sufficient to overcome the
evidence that Petitioner threatened to kill and confessed to killing his mother. See Hanes, 240 F.3d
at 698 (“While some of the potential witnesses' testimony could have been helpful in rebutting or
clarifying some collateral evidence, we do not believe any of the proffered testimony was so
important as to put counsel's failure to consult with or call these witnesses outside the wide bounds
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of strategic choices that counsel is afforded.”). Indeed, trial counsel likely chose not to present
additional testimony regarding Petitioner’s reaction to his mother’s death because it would have
highlighted his lack of emotion and intent to kill his mother. The Court finds no deficient
performance under Strickland and no basis for relief under Claim XIII, Point A, Argument 5.
6. 	Trial counsel was not ineffective for failing to present evidence of
alternate suspects (Claim VIII, Point A, Argument 6)
Petitioner argues that trial counsel was ineffective for failing to conduct any meaningful
investigation and presenting no evidence of alternative suspects, despite readily available leads
pointing to much more likely suspects. (ECF No. 1 at 90) Petitioner asserts that trial counsel failed
to investigate Ed Politte, Petitioner’s father, even though he was a suspect from the beginning of
the investigation. Petitioner notes that “Counsel did nothing to investigate Ed Politte’s motive,
whether his alibi was in fact solid, and critically, the possibility that Ed worked with someone else
to have Rita killed. Had he done so, he would have uncovered significant evidence that suggests
that Ed may have elicited the help of his cousin, Johnnie Politte, in order to pull off the murder.”
(ECF No. 1 at 91) Petitioner asserts that his trial counsel admitted that he should have investigated
Ed Politte as an alternate suspect. (ECF No. 1 at 92) Petitioner complains that, as a result of trial
counsel’s failure to investigate, the jury never heard that “Ed had clear motive and propensity for
this crime, and Johnnie had the opportunity and the direct connection of being seen leaving the
scene of the crime as first responders were arriving.” (ECF No. 1 at 92) Petitioner further presents
the affidavits of several jurors who indicated evidence of an alternate suspect would have made a
difference in their decision. (ECF No. 1 at 92-93) Thus, Petitioner claims he was prejudiced by
counsel’s failure to present evidence of an alternate suspect to the jury. (ECF No. 1 at 93)
The Cole County Circuit Court addressed this issue:
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Petitioner alleges that defense counsel should have offered his father, Ed
Politte, as an alternate suspect because he had gone through a contentious divorce
with the victim, even though Ed Politte lived and worked an hour and a half away
in suburban St. Louis. Amended Habeas Petition at 102-09. Petitioner indicates that
Ed Politte may have used his cousin, John Politte, with whom he was allegedly
close, as the killer. Id. In Missouri, for evidence of third party guilt to be admissible
the evidence must directly connect the third party with the corpus delecti of the
crime and clearly point to the person rather [than] the accused as the guilty person.
State v. Nash, 339 S.W.3d 500, 513 (Mo. 2011). Evidence that merely casts
suspicion on another or raises a conjectural inference of commission of the crime
by another is not admissible. Id. There is no direct connection between Ed Politte
and the corpus delecti of the murder here. The fact that he had litigated a
contentious divorce from the victim, and had a cousin in the general area of the
victim’s property is inadequate under Missouri law to permit an allegation that he
was the real killer. Counsel cannot have been ineffective for not presenting
evidence that was inadmissible under Missouri law. Strickland v. Washington, 433
U.S. 668 (1984). This claim is also procedurally barred.
(Cole County Decision at 36-37)
This Court holds that the Cole County Circuit Court reasonably applied federal case law
when it determined that trial counsel was not ineffective. Petitioner has not demonstrated that trial
counsel could have shown a direct connection between Ed Politte and the corpus delecti of Rita’s
murder. Thus, the state court correctly found that Petitioner’s theory that Ed Politte was the
murderer would have been inadmissible and, thus, he was not prejudiced by trial counsel’s
performance. Petitioner has not shown deficient performance under Strickland and Claim VIII,
Point A, Argument 6 fails.
7. 	Trial counsel was not ineffective for failing to present evidence
supporting Petitioner’s version of events (Claim VIII, Point A,
Argument 7)
Similarly, Petitioner contends that trial counsel “breached his duty to conduct a reasonable
investigation into what actually happened the night of the murder, and corroboration of
[Petitioner’s] account of the night, and call vital witnesses of which trial counsel had actual notice.”
(ECF No. 1 at 93) Petitioner argues that trial counsel’s failure to call Josh Sansoucie as a defense
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witness was deficient performance because he was the only person, aside from Petitioner, who was
inside the trailer at the time of Rita’s death and his testimony “would have illuminated for the jury
the mystery of what happened inside the trailer in the final hours of Rita’s life and provided a more
complete story that exculpated [Petitioner].” (ECF No. 1 at 94) Petitioner notes that Sansoucie was
deposed 11 days before trial and his testimony remained consistent and he was available to testify
at trial. (ECF No. 1 at 94-95) Petitioner contends that Sansoucie’s testimony would have negated
Petitioner’s supposed opportunity and motive because he would have testified that Petitioner did
not argue or express frustration with Rita. Id. at 95. Further, Petitioner asserts Sansoucie would
have testified that Petitioner offered him the option of sleeping on the couch in the living room,
which was inconsistent with any assertion that the murder was premeditated. Id.
The Cole County Circuit Court addressed this claim and found the trial counsel’s decision
not to call Sansoucie to be reasonable trial strategy:
“Generally the selection of witnesses and the introduction of evidence are
questions of trial strategy and virtually unchallengeable.” State v. Kenley, 925 S.W.
2d 250, 266 (Mo. 1997).
The decision not to call Sansoucie was a matter of trial strategy of the type
that is virtually unchallengeable. Petitioner provides an affidavit from Joshua
Sansoucie as an exhibit to the habeas petition. In the affidavit, Sansoucie claims he
was wakened in the night by a dog barking and a popping noise, and that he could
not see if Petitioner was in bed or not at the time. Sansoucie states that he was
deposed, and that he was out in the hallway of the courthouse during trial, but no
one called him to testify. Sansoucie also states that he watched video of himself
saying that Petitioner was not in his bed at the time Sansoucie woke up in the night,
as opposed to Sansoucie not being able to tell whether he was there or not, and he
would have believed he said that if he had not seen it on film. Id. There would have
been little value and great danger in calling Sansoucie. At best, he would have said
he did not know if Petitioner was in his bedroom or not when Sansoucie woke up
as he claims in his affidavit. He would also likely have confirmed that the two
smoked marijuana, and Petitioner set fire on railroad tracks earlier in the evening
using gasoline. The claim that counsel should have called the two is without legal
merit as well as procedurally barred. Strickland v. Washington, 466 U.S. 668
(1984).
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(Cole County Decision at 33-24) The Court agrees that the decision not to call Sansoucie was
reasonable trial strategy decision that is in keeping with Strickland jurisprudence. The state court
reasonably found there would have been “little value and great danger in calling Sansoucie” and
this determination should not be disturbed by this Court on review. The Court denies Claim VIII,
Point A, Argument 7.
B. Trial counsel was not ineffective for failing to deliver on counsel’s opening
statement (Claim VIII, Point B)
In Claim VIII, Point B, Petitioner contends that defense counsel was deficient because he
overstated his evidence in his opening statement and that the prosecutor identified these
deficiencies during his closing arguments. (ECF No. 1 at 98-100) In closing argument, the
prosecutor noted that defense counsel presented no evidence that Petitioner was interrogated for
hours, that juvenile officers wrote notes to law enforcement officers during this interrogation, or
that they seized the clothes. (ECF No. 1 at 96 (citing Transcript at 771-773)) Petitioner argues that
he was prejudiced by his counsel’s unfulfilled promises in his opening statement deficient
performance, which allowed the prosecutor to criticize the defense case and damaged counsel’s
credibility in the eyes of the jury. (ECF No. 1 at 100)
This claim was not included in Petitioner’s habeas corpus petition in Cole County but was
in his petition presented and denied in the Missouri Supreme Court. (ECF Nos. 21-91, 21-99) This
claim is without merit and procedurally barred because it was not presented during the ordinary
course of review. As to the merits, Petitioner has not shown that there likely would have been a
different result if trial counsel had presented its arguments differently. Further, the jury was
instructed that arguments are not evidence. (ECF No. 21-11 at 5) That is, “[a] jury is presumed to
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follow its instructions.” Weeks v. Angelone, 528 U.S. 225, 234 (2000); United States v. Flute, 363
F.3d 676, 678 (8th Cir. 2004). The Court finds no ineffectiveness under the Strickland standard.
C. Trial counsel was not effective for advising Petitioner not to testify (Claim
VIII, Point C)
In Claim VIII, Point C, Petitioner argues that his trial counsel was ineffective for failing
to prepare him to testify and for advising him not to testify; he asserts the state court unreasonably
applied Strickland and unreasonably determined facts. (ECF No. 29 at 28-29) Petitioner contended
that his attorney refused to allow him to prepare to testify at trial:
Judge: What did you ask him to do that he refused to do?
Petitioner: Getting ready to get put on the stand to testify. He never did. A week before my
trial he came to see me. He said later on in the week he was going to come, start asking
me questions, getting me ready for the stand, because I told him I wanted to testify. He
never showed up. And third day of my trial he pulled me out there, he said, I don’t think
you should testify, because you’re not ready. I said okay.
(ECF No. 10-2 at 860-61) Petitioner ultimately told the Judge that he was not satisfied with the
services rendered to him. (ECF No. 10-2 at 861) Petitioner argues that his decision not to testify
was “not knowing and voluntary waiver” but instead “was tainted and undermined by counsel’s
ineffectiveness.” (ECF No. 29 at 30) Petitioner claims that neither counsel nor Petitioner could
make an adequately informed decision weighing the benefits and risks of Petitioner taking the
stand under these circumstances. Id. Thus, Petitioner argues that his “counsel was ineffective for
failing to prepare [him] to testify and advising him not to testify without adequate investigation or
preparation.” (ECF No. 29 at 30) Petitioner contends that he was “one of only two people who
could testify to what happened the morning of Rita’s death, put questions jurors had to rest, provide
the jury with an accurate picture of how much he loves his mother, and protect his innocence.”
(ECF No. 29 at 33) Given that the jury did not get an opportunity to hear from him, Petitioner
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argues that “[b]ut for defense counsel’s failure to both challenge the State’s evidence and to allow
[Petitioner] to give exculpatory testimony, [Petitioner] would not have been convicted.” (ECF No.
29 at 33)
“Generally the selection of witnesses and the introduction of evidence are questions of trial
strategy and virtually interchangeable.” State v. Kenley, 925 S.W. 2d 250, 266 (Mo. 1997).
According to the state court, “[t]he transcript indicates Petitioner testified that after consultation
with counsel he made an independent decision not to testify in his case knowing that it was his
decision whether to testify. … Counsel could not have forced him to testify. And the decision not
testify (sic) was prudent.” (ECF No. 21-89 at 33) Petitioner testified that after consultation with
counsel he made an independent decision not to testify in his case knowing that it was his decision
whether to testify. Counsel could not have forced him to testify and the decision not to testify was
prudent. Testimony by Petitioner could have opened the door to his past bad conduct including his
threats to kill his mother. The claim is without merit as well as procedurally barred because it was
not presented within the ordinary course of review. Claim VIII, Point C fails.
D. Trial counsel was not ineffective for failing to ask the Prosecutor to call
Petitioner “Michael” instead of his Nickname “Bernie” (Claim VIII, Point
D)
Petitioner’s name is Michael Bernard but his friends apparently called him “Bernie”. He
claims that his counsel was ineffective for not objecting to the use of the name “Bernie” because
it would be mistaken as a nickname for an arsonist. 	(ECF No. 1 at 104-105) One juror even
assumed that Petitioner’s name was spelled “Burny” because he liked to burn things. Id. This claim
was not raised in the state habeas petition in Cole County but was presented to the Missouri
Supreme Court. (ECF No. 21-91, 21-99)
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The Court finds that this insinuation, based upon Petitioner’s nickname, is not the basis for
relief. Petitioner has not shown either prong of prejudice from Strickland. Notably, Petitioner did
not recognize or raise this claim until years after trial and after his amended state habeas petition
in Cole County Circuit Court, and there is no reasonable probability that Petitioner’s name changed
the outcome of the trial. Further, a juror’s affidavit cannot be used to impeach the jury’s verdict.
See Williams v. Daus, 114 S.W.3d 351, 364 (Mo. Ct. App. 2003) (citing Travis v. Stone, 66 S.W.3d
1, 4 (Mo. banc 2002)(“The general rule in Missouri is that a juror's testimony about jury
misconduct allegedly affecting deliberations may not be used to impeach the jury's verdict.”). The
Court finds that the Missouri Supreme Court reasonably applied Strickland and denies Claim VIII,
Point D.
E. Petitioner was not prejudiced by counsel’s actions (Claim VIII, Point E)
In Claim VIII, Point E, Petitioner argues that trial counsel’s deficient performance
prejudiced him. (ECF No. 1 at 105) Petitioner contends that trial counsel’s “myriad deficiencies
must be evaluated cumulatively, considering the totality of the evidence that would be before the
jury had counsel performed reasonably.” (ECF No. 1 at 105) Petitioner contends that the evidence
against him was weak and that “[j]urors have come forward today to unequivocally assert that had
trial counsel investigated and presented the evidence of viable alternative suspects, and challenged
the State’s gasoline evidence, they would have acquitted.” (ECF No. 1 at 106) Petitioner
emphasizes statements from jurors that they would have acquitted if they had been presented
additional information. Likewise, Petitioner states that, for his remaining Strickland claims, the
Cole County Circuit Court did not provide a reasoned decision and the Court should review these
claims de novo. (ECF No. 29 at 33) Petitioner asserts that the Circuit Court relied on untested
hearsay evidence to deny Petitioner’s claims. (ECF No. 29 at 34)
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Petitioner’s inadmissible juror affidavits and attacks on the prosecutor do not demonstrate
prejudice. The Missouri Supreme Court acted reasonably in rejecting it, to the extent there is a
claim. Petitioner’s claim presents an improper attempt to aggregate alleged prejudice from
different claims, which fail. See Middleton v. Roper, 455 F.3d 838, 851 (8th Cir. 2006) (to argue
that Strickland prejudice can be aggregated from multiple acts or omissions is contrary to Eighth
Circuit precedent as each claim must stand or fall on its own). Indeed, the Eighth Circuit has held
“[w]e do not understand the Strickland standard to demand this sort of cumulative performance
inquiry, see Wainwright v. Lockhart, 80 F.3d 1226, 1233 (8th Cir.1996) (“Errors that are not
unconstitutional individually cannot be added together to create a constitutional violation. Neither
cumulative effect of trial errors nor cumulative effect of attorney errors are grounds for habeas
relief.” (internal citation omitted)), nor does [appellant] direct us to a Supreme Court decision
supporting his assertion.” Forrest v. Steele, 764 F.3d 848, 860 (8th Cir. 2014). Thus, the Court
denies Claim VIII, Point E.
F. 	Direct Appeal Counsel was Effective
Finally, Petitioner argues that “[t]o the extent appellate counsel could have or should have
raised any of the above deficiencies of trial counsel, or other constitutional violations, in
[Petitioner’s] direct appeal, he was ineffective for failing to do so.” (ECF No. 1 at 107) Petitioner
claims that appellate counsel as ineffective for failing to advise [Petitioner] that he must file a Rule
29.15 motion for new trial in order to preserve his constitutional claims. (ECF No. 1 at 108)
Because Strickland claims are not raised on direct appeal in Missouri, Petitioner’s Rule 29.15
motion was “his first and only meaningful opportunity to pursue and preserve these compelling
constitutional claims.” Id.
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This claim was not included in the Amended Petition for Habeas Corpus filed in Cole
County. Petitioner, however, raised this claim in the Missouri Supreme Court. (ECF No. 21-91;
21-99) As noted by Respondent, this claim raises nothing. (ECF No. 21 at 53) Ineffective
assistance of trial counsel claims must be raised in the post-conviction review process in Missouri,
not on direct appeal. State v. Mitchell, 41 S.W.3d 574, 579 (Mo. App. S.D. 2001).
Further, as to Petitioner’s claim that direct appeal counsel, who did not represent Petitioner
in the post-conviction case, was ineffective for not advising Petitioner about the filing deadline for
a Rule 29.15 post-conviction motion (ECF No. 1 at 105), the Court finds this not to be a basis for
relief. The trial court informed Petitioner on the record regarding claims that could be filed in a
Rule 29.15 motion and the time limits for filing a Rule 29.15 motion but Petitioner failed to file
such a motion, which was not the fault of his direct appeal counsel. To show prejudice from a
claim of ineffective assistance of counsel, a petitioner must show a reasonably probability that but
for the alleged error that the outcome of the proceeding at which counsel represented the petitioner
would have been different, rather than that he would have ultimately prevailed in a later
proceeding. See Kennedy v. Kemna, 666 F.3d 472, 485 (8th Cir. 2012); Bode v. State, 203 S.W.3d
262, 269 (Mo. Ct. App. 2006) (“[I]n order to show Strickland prejudice in the context of ineffective
assistance of trial counsel, the appellant must show that but for the alleged professional errors of
trial counsel, the outcome of his trial would have been different, ... not the outcome of any direct
appeal.”). As discussed, Petitioner has not shown that the outcome of his trial would have been
different; thus, this claim fails as well.
G. Court review of Ineffective Assistance of Direct Appeal Counsel Claim
Petitioner asserts that this Court may review his ineffective assistance of counsel claims.
Petitioner notes that, prior to the Rule 91 filing in Cole County Circuit Court, no court has ever
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been presented with his counsel’s failures, his resulting prejudice, or an evidentiary hearing
regarding the same. Petitioner maintains that his defense was “insufficient and violated his
constitutional right to counsel.” (ECF No. 1 at 108-09) Petitioner contends that this is the first time
that his rights can be vindicated by any court on these new claims and “they are thus properly
presented.” (ECF No. at 109) In addition, Petitioner contends that his actual innocence overcomes
any potential procedural bar. Id. Petitioner asserts that his father’s deception by lying that he had
retained counsel to file a Rule 29.15 motion, as well has the ineffectiveness of counsel,
“particularly appellate counsel, also constitutes cause and prejudice.” Id. Finally, Petitioner posits
that his failure to preserve these claims are excused by Martinez v. Ryan, 566 U.S. 1 (2012).
Respondent notes that the court informed Petitioner on the record the claims he could file
a Rule 29.15 post-conviction motion and the time limits for filing said motion. (Trial Transcript
839-40) Petitioner, however, did not file a Rule 29.15 post-conviction motion.
Direct appeal counsel is not ineffective for Petitioner’s failure to file a Rule 29.15 motion.
To show prejudice from a claim of ineffective assistance of counsel, a petitioner must show a
reasonably probability that but-for the alleged error that the outcome of the proceeding at which
counsel represented the petitioner would have been different, rather than that he would have
ultimately prevailed in a later proceeding. See Kennedy, 666 F.3d at 485; Bode, 203 S.W.3d at 269.
Direct appeal counsel cannot be blamed for failing to file a Rule 29.15 post-conviction relief
motion, nor can he show that the outcome of that proceeding would have been different but-for
this failure. Similarly, Petitioner cannot blame his father when Petitioner did not perform his
obligation to file a Rule 29.15 motion. Petitioner has not shown that his direct counsel was deficient
under Strickland and this claim fails.
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IX. Actual Innocence
Finally, Petitioner argues that he is actually innocent. (ECF No. 1 at 109) He states that
“new evidence from new witnesses implicat[e] a different suspect” and “new scientific evidence
… conclusively proves his innocence, permitting this Court to reach his claims of constitutional
defect through the Schlup v. Delo innocence gateway.” Id.; Schlup v. Delo, 513 U.S. 298 (1995).
In Schlup v. Delo the Supreme Court held that a petitioner can obtain review of
procedurally defaulted claims if he produces reliable new evidence not available at trial which
demonstrates that it is more likely than not, that with this evidence, no reasonable juror would have
convicted him. Id. at 326–28. If a petitioner presents sufficient evidence of actual innocence, he
should be allowed through this gateway permitting him to argue the merits of his underlying
constitutional claims. Id. at 314–16. In deciding whether a petitioner has made the necessary
showing of innocence, a federal court must make its own determination of whether the “probative
force of the newly presented evidence in connection with the evidence of guilt adduced at trial” is
sufficient to warrant consideration of the otherwise barred claims. Id. at 330–32; Bannister v. Delo,
100 F.3d 610, 617 (8th Cir.1996).
Petitioner argues that no reasonable juror would have convicted him had they been
presented with the new evidence now before this court including that: (1) Petitioner did not have
gasoline on his shoes; (2) there is no evidence that an accelerant was used, because lab tests were
negative for accelerant and there is no way to determine the ignition source or speed of this fire –
which overturns the State’s entire trial theory; (3) a new witness emphasizes Petitioner’s lack of
motive; (4) multiple new witnesses with compelling, reliable evidence consistently point to another
perpetrator, Johnnie Politte; (5) new witnesses providing additional evidence pointing to Ed
Politte, including but limited to former Deputy Sheriff Tammy Nash (formerly Belfield); and (6)
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a new witness, a former law enforcement officer involved in the investigation of this case, has
come forward because she believes Petitioner is innocent, and to explain flaws in this investigation.
(ECF No. 1 at 111-12) Petitioner claims that State’s evidence was weak, based upon “law
enforcement’s misinformed, biased judgments about [Petitioner’s] behavior and his alleged, hotly
disputed statement while trying to kill himself,” and are also fatally undermined by new evidence,
including science and expert analysis. (ECF No. 1 at 112) Petitioner points to a juror’s testimony
that the juror would not have found him guilty based upon the totality of evidence available today,
particularly the absence of gasoline on Petitioner’s shoes and that the fire was not started with
gasoline. (ECF No. 1 at 112-13)
The Court finds that Petitioner does not satisfy the actual innocence test from Schlup v.
Delo, just as the Cole County Circuit Court found during state habeas proceedings. (Cole County
Decision at 20-24) The evidence that Petitioner cites is not new. Similar evidence was available to
the prosecutor, trial counsel, and the court at trial. Petitioner contends that his cousin Johnnie
Politte was the true murderer, citing witnesses who saw him walking near the victim’s home
around the time of the murder. However, these witnesses and their testimony were available at the
time of trial. Petitioner also purports to blame his father, Ed Politte, who was working in St. Louis
County at an auto plant on the night of the murder. Again, notwithstanding his alibi, Petitioner’s
father’s identity and possible motive are not new evidence that would satisfy the actual innocence
test.
Further, even if the evidence that Johnnie Politte and Ed Politte were the killers, that
Petitioner did not have gasoline on his shoes, that lab tests before trial did not show accelerants in
the house, and that jurors purportedly have changed their minds were considered “new evidence,”
this evidence is insufficient to prove that no reasonable juror would have convicted Petitioner.
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Petitioner admittedly stated that he was going to kill his mother and then himself; on the night of
the murder, he burned a railroad tie near his home with the same burn pattern found on his mother;
and he also confessed to murdering his mother a month later. Based upon this ample evidence, and
as found by Cole County Circuit Court during state habeas proceedings, this Court holds that this
is not an actual innocence case upon which no reasonable juror could convict. See Cole County
Decision.
X. 	Conclusion
Based on the foregoing, the Court finds that Petitioner's request for relief pursuant to 28
U.S.C. § 2254 should be denied. The Court finds that the state court's findings and conclusions
regarding Petitioner's claims were not contrary to, nor do they involve, an unreasonable application
of clearly established federal law as determined by the Supreme Court of the United States, nor
did they result in a decision that was based on an unreasonable determination of the facts in light
of the evidence presented in the state court proceedings. Further, because Petitioner has made no
showing of a denial of a constitutional right, the Court will not issue a certificate of appealability.
See 28 U.S.C. § 2253(c)(2); Tiedeman v. Benson, 122 F.3d 518, 522 (8th Cir. 1997).
Accordingly,
IT IS HEREBY ORDERED that Petitioner Michael Politte’s petition for writ of habeas
corpus (ECF No. 1) DENIED.
IT IS FURTHER ORDERED that John Mosley is substituted as the Respondent in this
action pursuant to Fed. R. Civ. P. 25(d).
IT IS FINALLY ORDERED that Petitioner has not made a substantial showing of a
denial of a constitutional right and this Court will not issue a Certificate of Appealability. A
separate Judgment of Dismissal in accord with this Order is entered on this same date.
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Dated this 18th day of February, 2026.
________________________________
JOSEPH S. DUEKER
UNITED STATES MAGISTRATE JUDGE
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