Timothy Donnell v. Dave Dormire ( 2000 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 99-1712
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Timothy Donnell, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the Western
* District of Missouri.
Dave Dormire, Superintendent, *
* [UNPUBLISHED]
Appellee. *
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Submitted: November 15, 1999
Filed: January 12, 2000
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Before McMILLIAN, FAGG, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
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PER CURIAM.
Timothy Donnell was convicted in state court of three counts of sodomy, see
Mo. Ann. Stat. § 566.060.1, and one count of second-degree robbery, see Mo. Ann.
Stat. § 569.030.1. The district court1 denied his 28 U.S.C. § 2254 petition, and he
appeals.
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The Honorable Nanette K. Laughrey, United States District Judge for the
Western District of Missouri.
The district court granted Mr. Donnell a certificate of appealability on his five
claims of ineffective assistance of appellate counsel. See 28 U.S.C. § 2253(c)(1)(A).
Mr. Donnell cannot prevail on these claims unless he shows that his appellate counsel's
performance was objectively unreasonable and that there is a reasonable probability
that the outcome of his appeal would have been different if his attorney had raised the
omitted claims. See Armstrong v. Gammon, 195 F.3d 441, 444 (8th Cir. 1999).
Appellate counsel need not raise every colorable claim, see id., and, to be effective,
counsel often must screen out weaker issues, see Smith v. Murray, 477 U.S. 527, 536
(1986).
Mr. Donnell first contends that his appellate counsel should have made two
double jeopardy arguments. Having carefully reviewed the record, we conclude that
Mr. Donnell was not prejudiced by his counsel's failure to argue that the three sodomy
convictions violated the double jeopardy clause. Generally, the double jeopardy clause
protects a defendant from multiple punishments in the same proceeding for the same
offense. See United States v. Bordeaux, 121 F.3d 1187, 1190 (8th Cir. 1997).
According to the evidence, Mr. Donnell, while repeatedly threatening to kill the victim,
twice forced her to perform oral sex: once behind the counter at her place of business
and once outside on a gravel lot. In between these two acts, Mr. Donnell forced the
victim to unzip her pants, and he pushed his fingers into her vagina. During the ordeal
he also went back and forth to the doors, apparently checking whether anyone was
approaching. We believe that the evidence supports the conclusion that Mr. Donnell
committed three acts of sodomy constituting distinct offenses under state law. See Mo.
Ann. Stat. § 566.060.1; see also Bland v. State, 805 S.W.2d 192, 194 (Mo. Ct. App.
1991). We also find no merit to Mr. Donnell's contention that his appellate attorney
should have argued that the double jeopardy clause precluded him from being convicted
of both sodomy and robbery.
With regard to Mr. Donnell's remaining claims of ineffective assistance, we
conclude that his appellate counsel reasonably omitted issues regarding the failure to
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strike a potential juror, the refusal of a misidentification instruction, and the exclusion
of evidence. We also reject Mr. Donnell's assertion that the state's answer to his
§ 2254 petition was insufficient to contest the merits of his ineffective-assistance
claims.
Finally, we do not address Mr. Donnell's contention that the trial court erred by
excluding the testimony of his expert witness, because the district court specifically
denied him a certificate of appealability on that issue, and not until his reply brief did
Mr. Donnell state that he sought such a certificate from this court. See Carter v.
Hopkins, 151 F.3d 872, 874 (8th Cir. 1998), cert. denied, 119 S. Ct. 524 (1998)
(district court's grant of certificate of appealability as to certain issues does not entitle
appellant to argue other claims as well). We conclude, moreover, that Mr. Donnell did
not make a "substantial showing" that the trial court's exclusion of the testimony
deprived him of a constitutional right. See 28 U.S.C. § 2253(c)(2).
Accordingly, we affirm the judgment of the district court.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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