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Deck v. Steele

United States District Court, E.D. Missouri, Eastern Division

April 13, 2017

CARMAN L. DECK, Petitioner,
v.
TROY STEELE, Respondents.

          MEMORANDUM AND ORDER

          CATHERINE D. PERRY UNITED STATES DISTRICT JUDGE.

         Petitioner Carman L. Deck is currently on death row at the Potosi Correctional Center in Mineral Point, Missouri, for the murders of James and Zelma Long. Deck was convicted by a jury in the Circuit Court of Jefferson County, Missouri, and was sentenced to death for each of the two murders. He is also serving two concurrent life sentences for two counts of armed criminal action, as well as consecutive sentences of thirty years' and fifteen years' imprisonment for one count of robbery and one count of burglary, respectively. Because Deck is serving consecutive sentences, Missouri Attorney General Josh Hawley is added to this case as a proper party respondent.[1]

         This action is before me now on Deck's request for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He raises numerous claims that his conviction and death sentences were obtained in violation of his constitutional rights. Because the facts underlying Deck's claims have been fully developed through the records submitted to the Court and no further development was necessary, I did not hold an evidentiary hearing on the claims. See Sweet v. Delo, 125 F.3d 1144, 1160 (8th Cir. 1997).

         I have carefully reviewed the extensive record in this case and the arguments of the parties and find that Deck is entitled to habeas relief on his claim that he was denied a fundamentally fair penalty trial because of delay not attributable to him, and for counsel's ineffectiveness in failing to pursue this meritorious claim before the trial court. I will therefore grant his petition for writ of habeas corpus on these bases. None of Deck's other claims merit relief.

         I. Factual Background

         The following recitation of facts comes from the Missouri Supreme Court's opinion affirming Deck's conviction on the first direct appeal in this case:

. . . In June 1996, Deck planned a burglary with his mother's boyfriend, Jim Boliek, to help Boliek obtain money for a trip to Oklahoma. Deck targeted James and Zelma Long, the victims in this case, because he had known the Longs' grandson and had accompanied him to the Longs' home in DeSoto, Missouri, where the grandson had stolen money from a safe. The original plan was to break into the Longs' home on a Sunday while the Longs were at church. In preparation for the burglary, Deck and Boliek drove to DeSoto several times to canvass the area.
On Monday, July 8, 1996, Boliek told Deck that he and Deck's mother wanted to leave for Oklahoma on Friday, and he gave Deck his .22 caliber High Standard automatic loading pistol. That Monday evening, Deck and his sister, Tonia Cummings, drove in her car to rural Jefferson County, near DeSoto, and parked on a back road, waiting for nightfall. Around nine o'clock, Deck and Cummings pulled into the Longs' driveway.
Deck and Cummings knocked on the door and Zelma Long answered. Deck asked for directions to Laguana Palma, whereupon Mrs. Long invited them into the house. As she explained the directions and as Mr. Long wrote them down, Deck walked toward the front door and pulled the pistol from his waistband. He then turned around and ordered the Longs to go lie face down on their bed, and they complied without a struggle.
Next, Deck told Mr. Long to open the safe, but because he did not know the combination, Mrs. Long opened it instead. She gave Deck the papers and jewelry inside and then told Deck she had two hundred dollars in her purse in the kitchen. Deck sent her into the kitchen and she brought the money back to him. Mr. Long then told Deck that a canister on top of the television contained money, so Deck took the canister, as well. Hoping to avoid harm, Mr. Long even offered to write a check.
Deck again ordered the Longs to lie on their stomachs on the bed, with their faces to the side. For ten minutes or so, while the Longs begged for their lives, Deck stood at the foot of the bed trying to decide what to do. Cummings, who had been a lookout at the front door, decided time was running short and ran out the door to the car. Deck put the gun to Mr. Long's head and fired twice into his temple, just above his ear and just behind his forehead. Then Deck put the gun to Mrs. Long's head and shot her twice, once in the back of the head and once above the ear. Both of the Longs died from the gunshots.
After the shooting, Deck grabbed the money and left the house. While fleeing in the car, Cummings complained of stomach pains, so Deck took her to Jefferson Memorial Hospital, where she was admitted. Deck gave her about two hundred fifty dollars of the Longs' money and then drove back to St. Louis County. Based on a tip from an informant earlier that same date, St. Louis County Police Officer Vince Wood was dispatched to the apartment complex where Deck and Cummings lived. Officer Wood confronted Deck late that night after he observed him driving the car into the apartment parking lot with the headlights turned off. During a search for weapons, Officer Wood found a pistol concealed under the front seat of the car and, then, placed Deck under arrest. Deck later gave a full account of the murders in oral, written and audiotaped statements.

State v. Deck, 994 S.W.2d 527, 531-32 (Mo. banc 1999) (Deck I).

         II. Procedural Background

         The jury returned its guilty verdicts on February 20, 1998, and recommended death for the two counts of murder. The trial court sentenced Deck on April 27, 1998, in accordance with the jury's recommendation. On June 1, 1999, the Missouri Supreme Court affirmed Deck's conviction and sentence. Deck I. Deck thereafter sought post-conviction relief under Missouri Supreme Court Rule 29.15, which was denied after an evidentiary hearing. On appeal of the denial of the motion, the Missouri Supreme Court found that Deck received ineffective assistance of trial counsel in relation to the submission of jury instructions on mitigation and remanded the matter for a new penalty-phase trial. Deck v. State, 68 S.W.3d 418 (Mo. banc 2002) (Deck II). The court concluded that, given the particular facts of the case in which substantial mitigating evidence was offered, there was a reasonable probability that the result of the proceeding would have been different absent counsel's errors. Id. at 431.

         A second penalty-phase trial began on April 29, 2003, and again resulted in a jury's recommendation of death for both murders. On June 30, 2003, the trial court entered judgment consistent with the recommendation. The Missouri Supreme Court affirmed the sentence on May 25, 2004. State v. Deck, 136 S.W.3d 481 (Mo. banc 2004). After granting certiorari, the United States Supreme Court reversed this judgment, finding that Deck's visible shackling during the second penalty proceeding violated his constitutional right to due process. Deck v. Missouri, 544 U.S. 622 (2005). The matter was remanded for further proceedings.

         Upon remand, a third penalty-phase trial was held in September 2008, after which a jury again recommended death for the two murders, and the trial court entered judgment in accordance with the recommendation. This judgment was affirmed by the Missouri Supreme Court on January 26, 2010. State v. Deck, 303 S.W.3d 527 (Mo. banc 2010) (Deck III). The United States Supreme Court denied certiorari on June 28, 2010. Deck v. Missouri, 561 U.S. 1028 (2010). Deck's motion for post-conviction relief under Missouri Supreme Court Rule 29.15 was denied after an evidentiary hearing. The Missouri Supreme Court affirmed the denial of post-conviction relief on July 3, 2012. Deck v. State, 381 S.W.3d 339 (Mo. banc 2012) (Deck IV).

         Deck initiated this proceeding for federal habeas corpus relief on August 27, 2012. Upon the appointment of counsel, Deck filed his petition for writ of habeas corpus on August 14, 2013. An amended petition was filed later that same date and is presently before the Court for determination. The respondents have responded to the claims raised in the petition, and Deck has filed a Traverse to that response. The parties also filed supplemental briefs on procedural default.

         III. Grounds Raised

         In his amended petition for writ of habeas corpus, Deck raises thirty-two grounds for relief:

         Guilt Phase

1. That he was denied his rights under the Fourth and Fifth Amendments when his confession was admitted in evidence against him;
2. That he was denied his rights to due process, to a trial by a fair and impartial jury, to reliable sentencing, and to be free from cruel and unusual punishment under the Fifth, Sixth, Eighth, and Fourteenth Amendments when he was denied a change of venue;
3. That he was denied due process and the members of the venire were denied equal protection in violation of the Fourteenth Amendment when the trial court permitted the State to exercise a peremptory strike against prospective juror 16, D.G.;
4. That he was denied his rights to due process, to a fair and impartial jury, to reliable sentencing, and to be free from cruel and unusual punishment under the Fifth, Sixth, Eighth, and Fourteenth Amendments when the trial court denied his challenge for cause of prospective juror 20, S.A.;
5. That he was denied effective assistance of trial counsel at his guilt-phase trial and third penalty-phase trial when counsel failed to investigate and present evidence from an expert on false confessions, in violation of the Sixth Amendment;
6. That he was denied effective assistance of trial counsel and due process when counsel failed to conduct an adequate investigation into his innocence and present that evidence at trial, in violation of the Sixth and Fourteenth Amendments;
7. That he was denied effective assistance of trial counsel and due process when counsel mentioned his prior convictions during voir dire, in violation of the Sixth and Fourteenth Amendments;
8. That he was denied effective assistance of trial counsel and due process when counsel failed to object to State's witness Shane Knoll's hearsay testimony about murders at the Long residence, in violation of the Sixth and Fourteenth Amendments;
9. That he was denied effective assistance of trial counsel, the right to confront and cross-examine adverse witnesses, and due process when counsel failed to object to State's witness Shane Knoll's hearsay testimony about Jim Boliek's alibi, in violation of the Sixth and Fourteenth Amendments; and
10. That he was denied effective assistance of appellate counsel in violation of the Sixth Amendment when counsel failed to raise on direct appeal a claim that the trial court erred in overruling his motion to disqualify the prosecuting attorney's office.

         Penalty Phase[2]

11. That he was denied his right to due process in violation of the Fifth and Fourteenth Amendments when the trial court overruled his motion to impose two life sentences without possibility of parole and imposed two death sentences, because his prior death sentences had been held unconstitutional by the United States Supreme Court;
12. That he was denied his rights to due process, to trial by a fair and impartial jury, and to be free from cruel and unusual punishment under the Fifth, Sixth, Eighth, and Fourteenth Amendments when the court struck two prospective jurors because they voiced reluctance to serve as foreperson but were otherwise qualified;
13. That he was denied his rights to a jury trial, to a presumption of innocence, proof beyond a reasonable doubt, due process, reliable sentencing, and freedom from cruel and unusual punishment in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments when the trial court sentenced him to death for a crime that was never pled in the indictment;
14. That he was denied his rights to due process, to a trial before a fair and impartial jury, and to a fair and reliable sentencing in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments when the prosecution engaged in improper closing argument;
15. That he was denied his rights to due process, a fair and impartial jury, a fair sentencing trial, and freedom from cruel and unusual punishment in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments when the trial court failed to read a mandatory instruction to the venire panel before death qualification;
16. That he was denied his rights to due process, a fair jury trial, and reliable sentencing under the Fifth, Sixth, Eighth, and Fourteenth Amendments when the trial court overruled his objections to instructions 8 and 13, which impermissibly shifted the burden of proof to him regarding mitigating evidence;
17. That he was denied proper proportionality review as required by Missouri law, in violation of his right to due process under the Fourteenth Amendment;
18. That he was denied effective assistance of trial counsel and the right to an impartial jury under the Sixth Amendment, and his right to be free from cruel and unusual punishment under the Eighth Amendment, when counsel failed to inquire of the prospective jurors whether they were willing to meaningfully consider mitigation evidence of childhood experience proffered by the defense;
19. That he was denied effective assistance of trial counsel under the Sixth Amendment, and his right to be free from cruel and unusual punishment under the Eighth Amendment, when counsel failed to investigate and call numerous witnesses who were later identified by post-conviction counsel;
20. That he was denied effective assistance of trial counsel under the Sixth Amendment when counsel failed to investigate and call numerous witnesses and present extensive records that were not later identified and presented by post-conviction counsel;
21. That he was denied effective assistance of trial counsel under the Sixth Amendment when counsel failed to develop and present evidence from a neuropsychologist;
22. That he was denied effective assistance of trial counsel and due process under the Sixth and Fourteenth Amendments when counsel failed to obtain a ruling from the court and request relief after objections to the State's improper opening statement;
23. That he was denied effective assistance of counsel under the Sixth Amendment when (a) trial counsel failed to object to the prosecutor's personal attacks upon him during cross-examination of the defense expert, and (b) appellate counsel failed to raise the issue for plain error on appeal;
24. That he was denied effective assistance of trial counsel under the Sixth Amendment, and his right to be free from cruel and unusual punishment under the Eighth Amendment, when counsel failed to object to the prosecutor's closing argument when the prosecutor (a) made statements that Deck had “prior escapes” and had helped inmates serving life sentences to escape, and (b) engaged in improper personalization;
25. That he was denied effective assistance of trial counsel and his right to a fair and impartial jury under the Sixth Amendment when counsel failed to question jurors G.H. and R.E. regarding their jury questionnaire responses;
26. That he was denied effective assistance of appellate counsel and due process under the Sixth and Fourteenth Amendments when counsel failed to raise a claim on appeal that the prosecutor made an improper opening statement;
27. That he was denied due process and the right to be free from cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments when the trial court improperly responded to a jury note during deliberations; 28. That he was denied effective assistance of appellate counsel under the Sixth Amendment when counsel failed to raise a claim on appeal that the trial court improperly responded to a jury note during deliberations;
29. That he was denied effective assistance of trial counsel under the Sixth Amendment when counsel failed to object to the trial court's failure to give a mandatory instruction before jury selection;
30. That his right to be free from cruel and unusual punishment under the Eighth Amendment will be violated if he is executed according to the execution protocol promulgated by the Missouri Department of Corrections on August 2, 2013;
31. That he was denied due process and the right to be free from cruel and unusual punishment under the Eighth and Fourteenth Amendments because numerous errors not attributable to him resulted in reversals and delays, which made it impossible to afford him a fair penalty phase proceeding in 2008 and from now on; and
32. That he was denied effective assistance of counsel under the Sixth Amendment when (a) trial counsel failed to move for preclusion of the death penalty given the length of time and the number of prior proceedings that made it impossible for him to receive a fair trial, and (b) appellate counsel failed to raise the issue on appeal.

         IV. Standard of Review

         Federal habeas relief is available to a state prisoner “only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). See also Williams-Bey v. Trickey, 894 F.2d 314, 317 (8th Cir. 1990).

         In order to obtain federal habeas review of a claim raised in a § 2254 petition, the petitioner must have first raised the federal constitutional dimensions of the claim in State court in accordance with State procedural rules. Duncan v. Henry, 513 U.S. 364 (1995) (per curiam); Beaulieu v. Minnesota, 583 F.3d 570, 573 (8th Cir. 2009) (quoting Gilmore v. Armontrout, 861 F.2d 1061, 1065 (8th Cir. 1988)). If the petitioner failed to properly present the claim in State court, and no adequate non-futile remedy is currently available by which he may bring the claim in that forum, the claim is deemed procedurally defaulted and cannot be reviewed by the federal habeas court “unless the [petitioner] can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claim[] will result in a fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991); see also Martinez v. Ryan, 566 U.S. 1, 10-11 (2012).

         Where the State court adjudicated a claim on the merits, federal habeas relief can be granted on the claim only if the State court adjudication “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, ” 28 U.S.C. § 2254(d)(1); or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding, ” 28 U.S.C. § 2254(d)(2). See Williams v. Taylor, 529 U.S. 362, 379 (2000). The federal law must be clearly established at the time petitioner's State conviction became final, and the source of doctrine for such law is limited to the United States Supreme Court. Williams, 529 U.S. at 380-83.

         A State court's decision is “contrary to” clearly established Supreme Court precedent when it is opposite to the Supreme Court's conclusion on a question of law or different than the Supreme Court's conclusion on a set of materially indistinguishable facts. Williams, 529 U.S. at 412-13; Carter v. Kemna, 255 F.3d 589, 591 (8th Cir. 2001). A State court's decision is an “unreasonable application” of Supreme Court precedent if it “identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case.” Williams, 529 U.S. at 413. Merely erroneous or incorrect application of clearly established federal law does not suffice to support a grant of habeas relief. Instead, the State court's application of the law must be objectively unreasonable. Id. at 409-11; Jackson v. Norris, 651 F.3d 923, 925 (8th Cir. 2011). Finally, when reviewing whether a State court decision involves an “unreasonable determination of the facts” in light of the evidence presented in the State court proceedings, State court findings of basic, primary, or historical facts are presumed correct unless the petitioner rebuts the presumption with clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Rice v. Collins, 546 U.S. 333, 338-39 (2006); Collier v. Norris, 485 F.3d 415, 423 (8th Cir. 2007). Erroneous findings of fact do not ipso facto ensure the grant of habeas relief, however. Instead, the determination of these facts must be unreasonable in light of the evidence of record. Collier, 485 F.3d at 423; Weaver v. Bowersox, 241 F.3d 1024, 1030 (8th Cir. 2001).

         The federal court is “bound by the AEDPA [Antiterrorism and Effective Death Penalty Act] to exercise only limited and deferential review of underlying State court decisions.” Lomholt v. Iowa, 327 F.3d 748, 751 (8th Cir. 2003). To obtain habeas relief from a federal court, the petitioner must show that the challenged State court ruling “rested on ‘an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.'” Metrish v. Lancaster, 133 S.Ct. 1781, 1786-87 (2013) (quoting Harrington v. Richter, 562 U.S. 86, 102-03 (2011)). This standard is difficult to meet. Id. at 1786.

         In circumstances where the State court does not address a federal claim that was fairly presented to that court, the court's lack of analysis “does not mean that [the petitioner] is necessarily entitled to habeas relief[.]” Huss v. Graves, 252 F.3d 952, 956 (8th Cir. 2001). Relief may be granted only if the decision of the State court is “substantially different” from what the decision would have been if that court had used the appropriate legal standard as established by the United States Supreme Court. Id. (quoting Williams, 529 U.S. at 405). Accordingly, in those circumstances, I must apply established Supreme Court precedent to the facts of this case to determine whether Deck is entitled to relief on the claim. Id.

         Deck's claims in this habeas petition must be addressed under a number of complex legal standards. He raises claims that are not cognizable in federal habeas proceedings; he raises claims that were defaulted at varying stages of the State court proceedings; and he raises claims that were determined on the merits in State court and therefore must be examined by me on the merits. I will address Deck's claims according to the legal standard under which they must be determined.

         V. Non-Cognizable Claims

         A. Ground 1 - Admission of Confession

         In his first ground for relief, Deck claims that his confession was obtained as a result of his unlawful arrest and subsequent search and should have been suppressed as fruit of the poisonous tree. Deck claims that the initial constitutional violation that led to his confession was his unlawful arrest in violation of the Fourth Amendment.[3]

         Verbal statements obtained as a result of a Fourth Amendment violation are subject to the exclusionary rule. United States v. Yousif, 308 F.3d 820, 832 (8th Cir. 2002) (citing Wong Sun v. United States, 371 U.S. 471, 485 (1963)); see also Brown v. Illinois, 422 U.S. 590 (1975). However, a State prisoner is precluded from asserting a Fourth Amendment claim as a basis for federal habeas relief unless he can demonstrate that the State courts did not afford him a full and fair opportunity to litigate the claim. Stone v. Powell, 428 U.S. 465, 494 (1976); Palmer v. Clarke, 408 F.3d 423, 437 (8th Cir. 2005); Willett v. Lockhart, 37 F.3d 1265, 1270 (8th Cir. 1994) (en banc).

         The Eighth Circuit has set forth a two-part test to determine whether a habeas petitioner has had an opportunity for a full and fair litigation of a Fourth Amendment claim in State courts. Willett, 37 F.3d at 1273. A Fourth Amendment claim is barred from federal habeas review under Stone v. Powell unless: 1) the State provided no procedure by which the petitioner could raise his Fourth Amendment claim, or 2) the petitioner was foreclosed from using that procedure because of an unconscionable breakdown in the system. Willett, 37 F.3d at 1273.

         The first prong of the Willett test is satisfied here in that the State of Missouri has a procedure by which Deck could raise his Fourth Amendment claim. Willett, 37 F.3d at 1272 (Eighth Circuit unaware of any State that does not have such a procedure). As to the second prong, there is no evidence before me showing that an unconscionable breakdown in the system prevented Deck from raising the claim. Indeed, Deck himself avers that he moved for the trial court to suppress his confession on the basis urged here, that the trial court considered evidence on the motion, and that the court's denial of the motion was reviewed by the Missouri Supreme Court. (Amd. Petn., ECF#30 at 25.) See also Deck I, 994 S.W.2d at 534-36. Deck renewed his motion to suppress at the third penalty-phase trial (Resp. Exh. LL at 545), and the Missouri Supreme Court again reviewed the trial court's denial of the motion. Deck III, 303 S.W.3d at 544-45. Accordingly, the State provided Deck the opportunity for full and fair litigation of his Fourth Amendment claim, and he availed himself of this opportunity to conclusion.

         Deck does not argue that the State denied him an opportunity to fully and fairly litigate his Fourth Amendment claim. Instead, he contends that Stone v. Powell should not apply in a death penalty case. Deck cites no legal authority to support this position, and I am aware of none.

         Because the State afforded Deck a full and fair opportunity to litigate his Fourth Amendment claim, and indeed he took full advantage of this opportunity, the claim raised in Ground 1 of the petition is not cognizable in this habeas proceeding and will be denied.

         B. Ground 30 - Lethal Injection Protocol

         In Ground 30, Deck claims that his Eighth Amendment right to be free from cruel and unusual punishment would be violated if he is executed according to the “current execution protocol promulgated by the Missouri Department of Corrections on August 2, 2013, ” arguing that use of the drug propofol at the dosage prescribed in the protocol is known to cause pain. (Amd. Petn, ECF #30 at 101.) Deck admits in his Traverse that the State no longer uses the protocol (Traverse, ECF #67 at 124) but argues that the current protocol also violates the Eighth Amendment.

         Because this claim does not challenge the validity of Deck's conviction or the duration of his sentence but instead challenges the lethal injection procedure promulgated by the State of Missouri, the claim is not cognizable in this habeas corpus action. Instead, “a method-of-execution claim must be brought under [42 U.S.C.] § 1983 because such a claim does not attack the validity of the prisoner's conviction or death sentence.” Glossip v. Gross, 135 S.Ct. 2726, 2738 (2015) (citing Hill v. McDonough, 547 U.S. 573, 579-80 (2006)).

         The claim raised in Ground 30 challenging Missouri's lethal injection protocol is not cognizable in this habeas proceeding and will be denied.

         VI. Procedurally Defaulted Claims

         A. Plain Error Claims

         Deck raised a number of claims on appeal to the Missouri Supreme Court that were not preserved for appellate review. Citing Missouri law, the supreme court reviewed these claims for plain error and found none. Deck raises some of these claims in Grounds 14 and 15 of this petition. Because they were not preserved for appellate review in the State court and were analyzed by the Missouri Supreme Court for plain error, they are subject to procedural default analysis. Clark v. Bertsch, 780 F.3d 873 (8th Cir. 2015) (applying the rule set out in Hayes v. Lockhart, 766 F.2d 1247 (8th Cir. 1985)).

         I invited the parties, including Deck, to address the extent to which some claims may be defaulted under the holdings of Clark and Hayes. In response, Deck argues that there is no procedural bar here - and thus no need for cause and prejudice analysis - because 1) the Eighth Circuit wrongly decided Clark, 2) United States Supreme Court decisions have since superseded the Eighth Circuit's Hayes decision, and 3) Deck III's substantive discussion of Deck's unpreserved claims permits me to address the substance of the claims. I reject each of these arguments.

         First, Deck's argument that Clark was wrongly decided is unavailing. While Deck contends that two Eighth Circuit cases decided before Hayes permit federal habeas relief on claims subject to only plain error review, Deck misapprehends the decisions in these cases. One cannot argue with Deck's position that, as stated in Dietz v. Solem, 640 F.2d 126 (8th Cir. 1991), habeas relief is not barred by a petitioner's mere failure to preserve a claim for review. Instead, as applied in Dietz and reinforced in Clark, habeas relief may be available if the petitioner shows cause and prejudice for what is otherwise a procedurally defaulted claim. In Brouillette v. Wood, 636 F.2d 215 (8th Cir. 1980), the other case Deck relies on, the issue there was found by the Eighth Circuit to have been properly submitted to the State supreme court. The Eighth Circuit therefore did not address the plain error/procedural default issue we face here. Accordingly, I do not accept Deck's argument that the Eighth Circuit's pre-Hayes decisions of Dietz and Brouillette stand for the proposition that there is no procedural default when a Missouri court addresses a claim for plain error.

         Nor do the United States Supreme Court's decisions of Harris v. Reed, [4] Ylst v. Nunnemaker, [5] and Coleman v. Thompson, [6] change the effect of Hayes. Harris held that procedural default does not bar federal habeas relief unless the last State court to address the claim clearly and expressly states that its decision rests on a State procedural bar. Ylst held that a federal habeas court must look through an unexplained State court order to the last reasoned decision to determine the basis for the decision. And Coleman held that the presumption that a State court relied on federal law in making its judgment applies only when the federal court has good reason to question whether there is an independent and adequate state ground for the decision. None of these circumstances apply here. The claims raised in Grounds 14 and 15 were raised on direct appeal for plain error review, and the Missouri Supreme Court clearly and expressly stated in all relevant respects that it was reviewing Deck's unpreserved claims for plain error. Deck III is not an unexplained order, nor does it leave me questioning the basis of its decision.

         Finally, Deck III's substantive discussion of Deck's unpreserved claims does not itself lift the procedural bar given that the court's discussion was merely in conjunction with its plain error review. See Hayes, 766 F.2d at 1252; see also Pollard v. Delo, 28 F.3d 887, 889 (8th Cir. 1994) (State court's consideration of merits of claim “as a matter of grace” does not erase fact that claim is defaulted because of petitioner's failure to comply with State's procedural rule).

         Accordingly, contrary to Deck's assertion, the claims raised in this petition that were addressed by the Missouri Supreme Court only for plain error are subject to procedural default analysis.

         1. Ground 14 Prosecutorial Misconduct, Improper Closing Argument In his fourteenth ground for relief, Deck argues that the prosecutor engaged in improper closing argument at the third penalty-phase trial when he 1) appealed to the jurors to return the death penalty based on their accountability to the Longs' grandchildren and great-grandchildren; 2) improperly personalized the argument by urging the jurors to place themselves in the victims' shoes; 3) misstated the evidence by analogizing the jurors to sheepdogs, the victims and society to sheep, and Deck to a wolf, and that the jurors would be responsible for Deck's future victims - including prison guards and other inmates - if he were not sentenced to death; and 4) misstated the evidence by arguing that Deck had had prior escapes from prison and had helped prisoners serving life sentences to escape. Deck acknowledges that only the accountability claim was preserved and addressed by the Missouri Supreme Court on appeal, and that the court “did not find that the trial court plainly erred in allowing [the other arguments].” (See Amd. Petn, ECF #30 at 57.)

         As discussed above, I am bound by the Eighth Circuit's holding in Clark that a federal habeas court cannot reach an unpreserved and procedurally defaulted claim merely because a reviewing State court analyzed that claim for plain error. Clark, 780 F.3d at 874. Instead, I may review the merits of the claim only if Deck shows cause for the default and actual prejudice resulting from the alleged constitutional violation, or that a fundamental miscarriage of justice would occur if I were not to address the claim. Coleman, 501 U.S. at 750. Here, all but Deck's first claim of improper closing argument are procedurally defaulted given that they were unpreserved under Missouri law and were reviewed by the State court only for plain error. Deck asserts no cause for or prejudice resulting from this procedural default. Nor does he claim that a fundamental miscarriage of justice would occur if I were not to address the merits of the claims.

         Accordingly, to the extent Deck claims in Ground 14 that the prosecutor improperly urged the jurors to place themselves in the victims' shoes, argued that the jurors would be responsible for Deck's future victims if he were not sentenced to death, and stated that Deck had had prior escapes from prison and had helped prisoners serving life sentences to escape, the claims are procedurally barred from federal habeas review and will be denied. Deck's claim that the prosecutor improperly argued that the jurors were accountable to the victims' family is the only part of Ground 14 that is not procedurally barred, and it is addressed on its merits later in this opinion.

         2. Ground 15 - Jury Instruction Error

         In Ground 15, Deck claims that the trial court erred when it failed to read a mandatory instruction under the Missouri Approved Instructions before death qualification of the venire panel. Although Deck raised this claim on direct appeal of his final penalty-phase trial, the Missouri Supreme Court reviewed the claim only for plain error because it was not preserved for appeal. Deck III, 303 S.W.3d at 545-47. Deck acknowledges this circumstance. (See Amd. Petn, ECF #30 at 59.) Given the unpreserved and procedurally defaulted nature of the claim, Clark, 780 F.3d at 874, I may review its merits only if Deck shows cause for the default and actual prejudice resulting from the alleged constitutional violation, or that a fundamental miscarriage of justice would occur if I were not to address the claim. Coleman, 501 U.S. at 750. Deck asserts no cause for or prejudice resulting from this procedural default. Nor does he claim that a fundamental miscarriage of justice would result if I were not to address the merits of the claim.

         Accordingly, the claim raised in Ground 15 of the petition is procedurally barred from federal habeas review and will be denied.

         B. Ineffective Assistance of Counsel Claims Subject to Martinez Analysis

         In Martinez v. Ryan, 566 U.S. 1 (2012), the Supreme Court held that “a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective.” Id. at 17. Accordingly, under Martinez, a petitioner may claim ineffective assistance of postconviction counsel to establish “cause” for procedural default of a habeas claim of ineffective assistance of trial counsel. To establish cause in this manner, the petitioner must show that post-conviction counsel's assistance was ineffective under the standards of Strickland v. Washington, 466 U.S. 668 (1984), and further demonstrate that his underlying claim of ineffective assistance of trial counsel is a “substantial” one, that is, that the claim has some merit. Martinez, 566 U.S. at 14. If the State demonstrates that the underlying claim of ineffective assistance of trial counsel is unsubstantial or non-meritorious, the petitioner cannot establish that post-conviction counsel was ineffective and thus cannot show cause for default of the underlying claim. Id. at 15-16. Likewise, if post-conviction counsel did not perform below constitutional standards, no cause is shown for default. Id.

         In this habeas petition, Deck raises numerous claims of ineffective assistance of trial counsel that were not raised in any post-conviction proceeding and thus are subject to procedural default. For each claim, Deck invokes Martinez and argues that ineffective assistance of post-conviction counsel caused his default. Although respondents contend that this “new rule” of Martinez may not be applied retroactively under Teague v. Lane, 489 U.S. 288 (1989), I note that when Deck filed this habeas action in August 2012, Martinez permitted habeas review of such claims. I will therefore apply Martinez in this case. See Buck v. Davis, 137 S.Ct. 759, 779-80 (2017). However, because the following defaulted claims of trial counsel error are not substantial, post-conviction counsel did not render ineffective assistance by failing to raise the claims.

         GUILT PHASE

         1. Ground 5 Expert on False Confessions

         In his fifth ground for relief, Deck claims that trial counsel was ineffective for failing to investigate and present evidence from an expert on false confessions at both the guilt-phase trial and third penalty-phase trial. Deck contends that such an expert would have aided defense counsel in trial preparation and would have provided trial testimony aiding the jury in assessing factors relevant to the truthfulness of confessions.

         The Sixth Amendment guarantees a criminal defendant the right to effective assistance of counsel. Strickland, 466 U.S. at 686. To prevail on a claim of ineffective assistance of counsel, a petitioner must show that 1) his counsel's performance was deficient, and 2) the deficient performance prejudiced his defense. Id. at 687. In evaluating counsel's performance, the basic inquiry is “whether counsel's assistance was reasonable considering all the circumstances.” Id. at 688. The petitioner bears a heavy burden in overcoming “a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Id. at 689. To establish prejudice, the petitioner “must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694.

         A presumption exists that counsel's conduct “might be considered sound trial strategy.” Strickland, 466 U.S. at 688. However, “the strength of the presumption turns on the adequacy of counsel's investigation[.]” White v. Roper, 416 F.3d 728, 732 (8th Cir. 2005). “[Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.” Strickland, 466 U.S. at 690-91. “In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. . . . [A] particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.” Id. at 691.

         Although Deck raised claims of ineffective assistance of trial counsel in State court, he did not pursue a claim on the theory presented here, that is, that counsel was ineffective for failing to investigate and call an expert witness regarding false confessions. For the following reasons, post-conviction counsel was not ineffective in their failure to bring the claim in post-conviction proceedings.

         Generally, in Missouri, expert testimony is not admissible if it relates to witness credibility because it invades the province of the jury. State v. Wright, 247 S.W.3d 161, 166 (Mo.Ct.App. 2008) (citing State v. Link, 25 S.W.3d 136, 143 (Mo. banc 2000)). Testimony from experts relating to factors that lead people to make false confessions and opinions that certain of those factors are present in the circumstances of the case “clearly . . . invade the province of the jury” because they relate to the credibility of a defendant's confession. Id. at 168. “‘To allow such expert testimony invades the jury's proper realm.'” Id. (quoting State v. Davis, 32 S.W.3d 603, 609 (Mo.Ct.App. 2000)). Because the trial court most likely would have concluded that testimony from an expert on false confessions would be inadmissible, it cannot be said that trial counsel's conduct in failing to pursue this strategy in Deck's case was deficient. See Dearstyne v. Mazzuca, 48 F.Supp.3d 222, 307-08 (N.D.N.Y.2011).

         Nor can it be said that trial counsel rendered ineffective assistance by failing to secure such an expert to aid them in pursuing motions to suppress, strategizing for jury selection, and planning the examination of witnesses. A review of the record shows counsel to have ably and thoroughly litigated the issue of Deck's confession, as demonstrated by the pretrial suppression motion and hearing, [7] counsel's opening statement, [8] vigorous and sustained cross-examination designed to call into question the events leading to Deck's confession and the interrogation itself, [9] as well as closing argument to the jury regarding the credibility of the confession.[10] See Dearstyne, 48 F.Supp.3d at 308; Davis, 32 S.W.3d at 609. In addition, the jury was instructed concerning Deck's statements, including what factors to consider in determining what weight, if any, to give the statements.[11]Other than Deck's speculation that a confessions expert would have provided additional assistance to counsel, nothing before the Court shows a reasonable probability that such additional assistance would have affected the outcome of the case, especially in light of counsel's conduct in ably pursuing a false confessions defense.

         Nor can Deck show that this evidence would have been admitted at the third penalty-phase trial. Deck's guilt was no longer at issue and could not be relitigated. Given that testimony from a confessions expert would likely not have been admitted at the third penalty-phase trial because of its lack of relevance, penalty-phase counsel cannot be said to be ineffective for failing to secure such a witness.

         Accordingly, given the likelihood that the trial court would have disallowed expert testimony on false confessions, and Deck's failure to show a reasonable probability that assistance from such an expert would have changed the outcome of the proceedings, it cannot be said that Deck's underlying claim of ineffective assistance of trial counsel was so substantial that post-conviction counsel was ineffective for failing to raise the claim during post-conviction proceedings. Deck has thus failed to show adequate cause to excuse his default of the claim raised in Ground 5 of the instant petition. Martinez, 566 U.S. at 15-16. Deck's failure to show cause for his procedural default makes a determination of prejudice unnecessary. Cagle v. Norris, 474 F.3d 1090, 1099 (8th Cir. 2007).

         Nor has Deck shown that a fundamental miscarriage of justice would result if I were not to address the merits of his underlying claim. To invoke the “fundamental miscarriage of justice” exception to showing cause and prejudice for a defaulted claim, Deck must “present new evidence that affirmatively demonstrates that he is innocent of the crime for which he was convicted.” Abdi v. Hatch, 450 F.3d 334, 338 (8th Cir. 2006); see also Brownlow v. Groose, 66 F.3d 997, 999 (8th Cir. 1995). “[A] claim of ‘actual innocence' is . . . a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits.” Mansfield v. Dormire, 202 F.3d 1018, 1024 (8th Cir. 2000). To successfully pursue a claim of actual innocence, Deck must show 1) new reliable evidence not available at trial; and 2) that, more likely than not, no reasonable juror would have convicted him in light of the new evidence. Amrine v. Bowersox, 238 F.3d 1023, 1029 (8th Cir. 2001); see also Kidd v. Norman, 651 F.3d 947 (8th Cir. 2011); Storey v. Roper, 603 F.3d 507, 524 (8th Cir. 2010). Here, Deck presents no new reliable evidence of his actual innocence. Schlup v. Delo, 513 U.S. 298, 316 (1995) (“Without any new evidence of innocence, even the existence of a concededly meritorious constitutional violation is not in itself sufficient to establish a miscarriage of justice that would allow a habeas court to reach the merits of a barred claim.”); Weeks v. Bowersox, 119 F.3d 1342, 1352-53 (8th Cir. 1997) (en banc) (bare, conclusory assertion that a petitioner is actually innocent insufficient to excuse a procedural default). Deck has failed to present any evidence of actual innocence. He has thus failed to show that a constitutional violation has probably resulted in the conviction of one who is actually innocent. See Weeks, 119 F.3d at 1352-53.

         Ground 5 is therefore procedurally barred from federal habeas review and will be denied.

         2. Ground 6 - Failure to Conduct Adequate Investigation into Innocence

         In his sixth ground for relief, Deck claims that trial counsel was ineffective for failing to investigate and present at trial evidence regarding his innocence. Specifically, Deck contends that counsel should have investigated the following witnesses, averring that they would have provided testimony supporting his innocence and theory of false confession: 1) Elaine Gunther, 2) James Boliek, 3) Kathy Brewster, 4) Michael Deck, 5) William Boliek, 6) Tonia Cummings, 7) Sheila Francis, 8) Unknown Jefferson Memorial Hospital Staff, and 9) himself -Carman Deck, Jr. Deck also contends that counsel should have pursued DNA testing of physical evidence seized from the victims' home and from his car to determine whether the evidence was connected to the victims.

         “[A] reasoned decision not to call a witness is a virtually unchallengeable decision of trial strategy.” Rodela-Aguilar v. United States, 596 F.3d 457, 464 (8th Cir. 2010) (internal citation and quotation marks omitted). However, failing to interview witnesses or discover mitigating evidence may be a basis for finding counsel ineffective within the meaning of the Sixth Amendment right to counsel if the petitioner can “make a substantial showing that, but for counsel's failure to interview . . . the witnesses in question, there is a reasonable probability that the result of his trial would have been different.” Kramer v. Kemna, 21 F.3d 305, 309 (8th Cir. 1994). For the following reasons, Deck has not made the substantial showing required of him in this case.

         There is no per se rule that failure to interview witnesses constitutes ineffective assistance because such claims turn on their individual facts. Sanders v. Trickey, 875 F.2d 205, 209 (8th Cir. 1989). To succeed on a claim that counsel was ineffective for failing to investigate, Deck may not base his claim on conclusory allegations but rather must allege what information his attorney failed to discover. See Id. at 210. A habeas petitioner who offers only speculation that he was prejudiced by counsel's failure to investigate fails to show ineffective assistance of counsel. Id.; see also Redeemer v. State, 979 S.W.2d 565, 569 (Mo.Ct.App. 1998).

         James Boliek

         A review of the trial transcript in its entirety shows that Deck's strategy at trial was to implicate James Boliek in the murders of James and Zelda Long. Indeed, Deck adduced evidence consistent with this theory and argued this theory to the jury. Evidence was also adduced, however, that the criminal investigation into James Boliek's involvement in the murders did not proceed beyond its initial stages because of alibi evidence considered by the investigators to be sufficient to remove suspicion from Boliek. Deck now claims that trial counsel was ineffective for failing to investigate and call Boliek to testify at trial regarding Deck's innocence.

         As an initial matter, I find it unlikely that Boliek would have testified to Deck's innocence inasmuch as, in order to do so consistent with Deck's theory of defense, he would have had to essentially confess to his own involvement in the crime. Nevertheless, Deck has failed to present any independent evidence as to what Boliek would have allegedly said had he been interviewed or called to testify. He has provided no affidavits or any other information that would support his claim that Boliek would have testified to his innocence. Instead, Deck provides only speculation about what Boliek's potential testimony would have been. Recognizing the deferential standard when reviewing the conduct of counsel, I decline to find prejudice in this situation when there is no evidence other than speculation to support the finding. See Sanders, 875 F.2d at 210.

         Because Deck cannot satisfy both prongs of the Strickland analysis, he cannot succeed on his claim of ineffective assistance of trial counsel for failing to investigate and call James Boliek to testify at trial. Post-conviction counsel was not ineffective for failing to raise this unsubstantial claim on post-conviction review.

         Elaine Gunther and William Boliek

         Deck avers that Elaine Gunther (James Boliek's neighbor) and William Boliek (James Boliek's father) had information relating to James Boliek's alibi and would have testified regarding Deck's innocence. As with James Boliek, however, Deck offers only general speculation that these individuals would have provided information and would have testified as to his innocence. Deck does not indicate what information would have been obtained, the content of any potential testimony, or any independent support for his claim that investigation of these individuals would have had an effect on the outcome of his case. Because Deck offers nothing more than speculation, he has failed to show that he was prejudiced by counsel's failure to further investigate these potential witnesses and thus cannot show ineffective assistance of trial counsel with respect to Ms. Gunther and William Boliek. See Saunders v. United States, 236 F.3d 950, 952-53 (8th Cir. 2001) (with lack of specificity as to content of proposed testimony, petitioner cannot show how outcome of trial would have been different); Sanders, 875 F.2d at 210. See also Redeemer, 979 S.W.2d at 569.

         Post-conviction counsel was not ineffective for failing to pursue this unsubstantial claim on post-conviction review.

         Nurse Francis and Unknown Staff of Jefferson Memorial Hospital

         Deck avers that investigation of these individuals would have shown that he arrived at the hospital with his sister before the time the murders were committed and left after they were committed. Although Deck contends that these persons would have testified to such matters at trial, he has provided no affidavits or any other information that would support this claim. Deck provides only speculation.

         Nevertheless, evidence adduced before the trial court showed that Deck arrived at the Long residence on July 8, 1996, shortly after 9:00 p.m. and was there for ten to fifteen minutes. (Resp. Exh. F at 763-64; Exh. M at 336.) Additional evidence before the trial court showed Jefferson Memorial Hospital to be located about six to eight miles from the Long residence and that this distance could be traveled in ten minutes. (Resp. Exh. F at 770.) As such, Nurse Francis's and the hospital staff's proposed testimony that Deck was present at the hospital at 10:10 p.m. (see Resp. Exh. L at 169) would have done nothing to support Deck's claim that he was present at the hospital when the murders occurred. Deck has thus failed to show a reasonable probability that the outcome of his trial would have been different had such testimony been adduced.

         Because Deck cannot show that counsel's failure to investigate and/or call Nurse Francis and the hospital staff to testify at trial prejudiced his defense, he cannot demonstrate that counsel was ineffective by this failure. Post-conviction counsel cannot be ineffective for failing to pursue a non-meritorious claim.

         Michael Deck

         Deck avers that his brother, Michael Deck, had information regarding Boliek's alibi and would have testified to Deck's innocence. No independent information has been presented to this Court to support these speculative averments. On this basis alone, Deck's claim of ineffective assistance of trial counsel with respect to counsel's conduct involving Michael Deck fails.

         I also note, however, that Michael Deck testified at the first penalty-phase trial, which was conducted immediately upon the jury's initial finding of guilt. The substance of Michael Deck's testimony involved Deck's upbringing and the relationship he had with his family. At the post-conviction motion hearing, Deck's trial counsel testified that Michael Deck was in the military during the relevant time and was not in the State of Missouri at the time trial began. Counsel testified that the defense team interviewed Michael Deck by telephone and determined that he would be an effective mitigation witness during the penalty phase. (Resp. Exh. N at 134-35.) This testimony belies Deck's contention that counsel failed to investigate Michael Deck as a potential witness.

         To the extent Deck argues that counsel should have investigated Michael Deck and presented his testimony at the guilt phase of the trial given his purported information regarding Boliek's alibi and Deck's innocence, Deck offers nothing but speculation that Michael Deck had such information and would have provided this testimony. Prejudice cannot be found on speculation alone. Because Deck could not succeed on a claim that trial counsel was ineffective for failing to investigate and call Michael Deck to testify at the guilt phase of his trial, post-conviction counsel was not ineffective for failing to bring this unsubstantial claim on post-conviction review.

         Kathy Brewster

         Deck avers that his mother, Kathy Brewster, had information relating to Boliek's alibi and would have testified to Deck's innocence. Because Deck presents nothing other than speculation to support this averment, he cannot succeed on his claim that counsel was ineffective in relation to their conduct involving Ms. Brewster. Nevertheless, I find counsel's failure to call Ms. Brewster to testify to be a matter of sound trial strategy. Deck's claim of ineffective assistance of counsel in this regard thus fails.

         At Deck's post-conviction hearing, trial counsel testified that they or members of the defense team met and/or spoke with Brewster on numerous occasions prior to trial. Counsel's impression from these meetings was that Brewster was more concerned with her daughter, Tonia Cummings, than with Deck. Counsel specifically testified that they determined not to call Brewster to testify at the penalty phase of the trial because she appeared not to be “wholeheartedly behind her son” and was not “trust[ed] . . . to testify on behalf of her son.” (Resp. Exh. N at 91, 112, 115, 137-39.) There is no indication that Brewster's demeanor or focus would have been different during the guilt phase of the trial, and Deck has presented nothing so indicating.

         The decision to call family members as witnesses is a strategic decision. Walls v. Bowersox, 151 F.3d 827, 834 (8th Cir. 1998). The failure to present witness testimony that could be detrimental to the defense is not unreasonable under Strickland. See Johns v. Bowersox, 203 F.3d 538, 546 (8th Cir. 2000); see also Haley v. Armontrout, 924 F.2d 735, 740 (8th Cir. 1991) (counsel did not render ineffective assistance by failing to use witness testimony that would not have benefitted petitioner and may have had significant detrimental effect). Counsel's reasons not to call Brewster to testify at the penalty phase of the trial apply equally to the guilt phase of the trial. Because counsel reasonably determined that Brewster's testimony could be more detrimental to Deck than beneficial, Deck cannot overcome the strong presumption that counsel's failure to call her to testify at the guilt phase of the trial was sound trial strategy. See Walls, 151 F.3d at 834 (not ineffective assistance in failing to call family members to testify when such testimony would have revealed their total lack of support). Further, Deck's unsupported contention that counsel failed to properly conduct an investigation with respect to Brewster is belied by the record and without merit.

         Post-conviction counsel is not ineffective for failing to bring a non-meritorious claim of ineffective assistance of trial counsel.

         Tonia Cummings

         Deck's sister, Tonia Cummings, was a co-defendant in the underlying criminal action and was likewise charged with two counts of murder first degree and armed criminal action, burglary, and stealing in relation to the Long murders. (Resp. Exh. N at 22.) Deck avers that Cummings would have given testimony regarding his innocence and her fear of James Boliek that caused her to implicate herself and Deck in the Long murders.

         At the hearing on Deck's motion for post-conviction relief, Cummings' trial counsel testified that she would have advised Cummings not to testify at Deck's trial because of the possibility that she could incriminate herself, thereby causing harm to herself. (Resp. Exh. N at 27.) Deck's trial counsel testified that they attempted but were unable to speak with Cummings prior to trial and were told by Cummings' attorney that she was a “basket case.” (Id. at 98, 140.) Counsel cannot be considered ineffective for failing to secure testimony from a witness unavailable to testify on the advice of her own counsel. See Weaver v. United States, 793 F.3d 857 (8th Cir. 2015).

         Further, a review of the evidence adduced at the post-conviction proceedings shows that evidence from Cummings would have likely had a detrimental effect on Deck's defense. During the post-conviction proceedings, Cummings submitted an affidavit attesting that she and Deck drove to the Long residence on July 8, 1996; that Deck was at the residence for ten to fifteen minutes; that she did not see Deck with a gun while he was at the residence; and that Deck had earlier bragged about burglarizing a home that had a safe. Cummings also attested to other persons' fear of James Boliek and to other persons' beliefs that he committed the murders. (Resp. Exh. M at 7-8.) These matters to which Cummings attested are damaging to Deck and would not have exonerated him. In light of these sworn statements that are damaging to Deck, it cannot be said that a reasonable probability exists that Deck's trial would have had a different result had counsel called Cummings to testify. The failure to present witness testimony that could be detrimental to the defense is not unreasonable under Strickland. See Johns, 203 F.3d at 546. Post-conviction counsel was therefore not ineffective for failing to bring this unsubstantial claim on post-conviction review.

         Petitioner Carman Deck

         Deck contends that if he had been permitted to testify at trial, he would have testified that he was innocent, that his confession was false and given in response to abusive interrogation, and that he feared James Boliek.

         As an initial matter, I note that Deck raised a claim in his pro se post-conviction motion that trial counsel was ineffective for disagreeing with him on the issue of testifying on his own behalf. (Resp. Exh. L at 10.) This claim was not raised in the amended motion filed by appointed counsel. (Resp. Exh. O at 233-34.) At the post-conviction hearing, the trial court provided Deck the opportunity to pursue the claim; but Deck, speaking on his own behalf, informed the court that he did not want to pursue it. (See Id. at 231-34.) I question how post-conviction counsel can be ineffective for failing to raise a claim of ineffective assistance of trial counsel that Deck himself told the court he did not want to pursue. Nevertheless, the record before the post-conviction motion court shows trial counsel did not act unreasonably with respect to Deck's ability to testify on his own behalf.

         A criminal defendant has the ultimate authority to decide whether to testify on his own behalf. Whitfield v. Bowersox, 324 F.3d 1009, 1013 (8th Cir.), vacated in part on other grounds, 343 F.3d 950 (8th Cir. 2003). Counsel may advise a defendant not to testify, however, as a matter of reasonable trial strategy. Id. at 1016-17. At the hearing on Deck's post-conviction motion, counsel testified that no issue arose with respect to Deck's right to testify and, further, that during the course of the trial, counsel came to believe that having Deck testify would have a detrimental effect.

A. [W]e had discussed various times during our representation and our preparation of whether or not Carman would testify. We had never made any hard and fast rule about Carman testifying or not testifying. When we actually got into trial I think Carman was sufficiently nervous that he never pushed the issue about testifying and after all was said and done I certainly didn't want to put him on the stand and have him cross-examined about his statements that he'd given to the police upon his arrest. Didn't want to have him go through that again. It was very damaging. So I felt it was in his best interest to keep him off the stand and that was never a big point that we had to argue.
Q. You felt that would highlight his testimony about his confession?
A. Right.
Q. By having to go through it again?
A. Yes.
Q. And you felt that -- We're talking about both guilt and penalty phase?
A. Right.

(Resp. Exh. O at 230.)

         Deck does not assert that counsel overbore his will to testify, and the record shows that the issue never arose between him and counsel given his nervousness at trial and counsel's belief that his testimony would actually serve to do more harm than good. Deck makes no argument nor presents any evidence that his testimony, if adduced, would have made a difference to the jury. Counsel cannot be found to be ineffective for determining, for sound strategic reasons, that Deck should not testify and for not pursuing the issue where none existed.

         Accordingly, Deck has not shown that his trial counsel's performance was deficient or that he suffered any prejudice on account of counsel's assistance regarding his right to testify, Whitfield, 324 F.3d at 1017, and post-conviction counsel was not ineffective for failing to pursue this claim.

         DNA Evidence

         Deck contends that trial counsel was ineffective for failing to investigate whether physical evidence seized at the Longs' home and from his car could be connected to the Longs through DNA testing. Deck does not specify what physical evidence should have been tested, nor does he identify the purpose for such testing other than “to exclude physical evidence belonging to the Longs.” (Traverse, ECF #67 at 54.) Nor does he explain how information obtained through DNA testing would have aided him such that a reasonable probability exists that the outcome of his trial would have been different. By failing to provide any specifics, Deck has failed to demonstrate either deficient performance or any prejudice from counsel's conduct. Forest v. Delo, 52 F.3d 716, 722 (8th Cir. 1995).

         Nevertheless, testimony adduced at trial showed that items seized from Deck's car yielded no blood evidence; and testing of Deck's clothing yielded no trace evidence, such as blood, hair, or fibers from the crime scene. (Resp. Exh. F at 660-61, 681-82, 688-89.) In addition, various items from the Long residence, as well as the decorative tin and the gun seized from Deck's car, were dusted for fingerprints (id. at 656-58, 694-95), but, as stipulated by the parties at trial, the fingerprint evidence had no evidentiary value - it could not be compared to either Deck's or the victims' fingerprints. (Id. at 694.) Given that evidence and testimony adduced at trial showed no forensic link between the physical evidence seized and the Longs' belongings, I am unable to conclude that counsel rendered ineffective assistance for failing to investigate or adduce additional evidence for the purpose of excluding such a link. The failure to present cumulative evidence does not result in prejudice sufficient to give rise to a claim of ineffective assistance of counsel. Winfield v. Roper, 460 F.3d 1026, 1034 (8th Cir. 2006). Post-conviction counsel was therefore not ineffective for failing to raise this unsubstantial claim.

         Accordingly, it cannot be said that Deck's underlying claim of ineffective assistance of trial counsel with regard to the above-named witnesses and evidence was so substantial that post-conviction counsel was ineffective for failing to raise the claim during post-conviction proceedings. Deck has thus failed to show adequate cause to excuse his default of the claim raised in Ground 6 of the petition, Martinez, 566 U.S. at 15-16, thereby making a determination of prejudice unnecessary. Cagle, 474 F.3d at 1099. Nor has Deck shown that a fundamental miscarriage of justice would result if I were not to address the merits of his underlying claim.

         Accordingly, because the claim raised in Ground 6 of the petition is procedurally barred, it will be denied.

         3. Ground 7 - Introduction of Prior Convictions During Voir Dire

         The venire panel from which jurors were selected to determine Deck's guilt underwent voir dire examination in relation to the guilt phase of the trial as well as in relation to a potential penalty phase. The petit jury that found Deck guilty proceeded to determine his penalty at the first penalty-phase trial and ultimately recommended the death sentence for the Long murders. During the voir dire examination, Deck's trial counsel stated to the venire that, if the matter were to proceed to the penalty phase, they may hear evidence that Deck had some prior criminal convictions for non-violent offenses. Because of this, the petit jury selected from this venire - and who determined Deck's guilt - had knowledge during the guilt phase of the trial that Deck had prior convictions. Deck argues here that trial counsel was ineffective for informing the jury of his prior convictions and that this deficient performance prejudiced his defense in that the jury was more likely to find him guilty of the offenses charged given his known history of criminal conduct.

         Counsel's actions during voir dire are considered matters of trial strategy. See Miller v. Francis, 269 F.3d 609, 615 (6th Cir. 2001); see also, e.g., Knese v. Roper, No. 4:03CV1082 CEJ (TIA), 2006 WL 2506005, at *6-8 (E.D. Mo. Aug. 28, 2006) (method of voir dire matter of trial strategy). In conducting voir dire examination for a capital case, defense counsel's informing the venire panel that the defendant has prior convictions does not per se constitute ineffective assistance of counsel under Strickland. See Brown v. Luebbers, 344 F.3d 770, 781-82 (8th Cir. 2003) (noting the jury “surely would find out about it” since prosecution intended to argue prior conviction as aggravating factor; matter of trial strategy); Caldwell v. Steele, No. 4:06CV394 RWS, 2009 WL 90352, at * 11 (E.D. Mo. Jan. 14, 2009) (no deficient performance when, as matter of trial strategy, counsel informed venire of petitioner's prior record in order to remove potential jurors who would negatively assess petitioner's testimony based thereon); State v. Moore, 930 S.W.2d 464, 469 (Mo.Ct.App. 1996) (no prejudice from defense counsel revealing two prior convictions to venire where State introduced strong evidence of guilt at trial). Cf. Barnett v. Roper, No. 4:03CV00614 ERW, 2006 WL 2475036, at *41-44 (E.D. Mo. Aug. 24, 2006) (no ineffective assistance where, as a matter of trial strategy, counsel did not inform venire of petitioner's prior convictions because counsel knew petitioner would not testify during guilt phase of trial).

         Viewing the voir dire examination in context here, defense counsel informed the venire panel that evidence may show that Deck had prior convictions of a nonviolent nature. Counsel then asked the panel if this circumstance would prevent any potential jurors from fully considering evidence offered on behalf of Deck during a possible penalty trial. (Resp. Exh. E at 452.) It thus appears that counsel was attempting to weed out those potential jurors who would not be able to fully consider mitigating evidence favorable to Deck on account of prior convictions. This is reasonable strategy. State v. Johnson, 901 S.W.2d 60, 62 (Mo. banc 1995).

         In the circumstances of this case, it cannot be said that trial counsel's challenged conduct during voir dire was deficient. Because counsel's conduct was not deficient, Deck cannot establish ineffective assistance of counsel. Brown, 344 F.3d at 782. Because Deck's claim of ineffective assistance of trial counsel is not substantial, post-conviction counsel was not ineffective for failing to raise the claim during post-conviction proceedings. Deck has thus failed to show adequate cause to excuse his default of the claim raised in Ground 7 of the petition. Martinez, 566 U.S. at 15-16. Nor has Deck shown that a fundamental miscarriage of justice would occur if I were not to review the claim. The claim raised in Ground 7 will therefore be denied.

         4. Ground 8 Testimony from Witness Knoll re Long Residence

         In his eighth ground for relief, Deck contends that trial counsel was ineffective for failing to object to certain portions of testimony provided by State witness Shane Knoll, arguing that the testimony was inadmissible hearsay and thus its introduction violated his right to confront witnesses as guaranteed by the Sixth Amendment.

         During the guilt phase of the trial, Detective Shane Knoll of the Jefferson County Sheriffs Department provided the following testimony regarding his interrogation of Deck after Deck was taken into custody on July 8, 1996: During the course of the interrogation, Deck made statements both orally and in writing. On the morning of July 9, Detective Knoll asked Deck “what happened, ” and Deck provided a statement that Jim Boliek approached him and Tonia and wanted them to follow Boliek to DeSoto; that when they did, they parked on a side road, and Boliek told them he would be back in about ten to fifteen minutes and for them to wait for him; that when Boliek returned, he gave Deck a pistol and a can of quarters and told Deck and Tonia to follow him back to St. Louis; and that Tonia became sick on the way back to St. Louis, and he took her to the hospital. At the time Deck gave this statement to Detective Knoll, no crime scene had yet been discovered. Detective Knoll then asked Deck where Boliek was so that an attempt could be made to determine the location of the crime scene. In response, Deck told him “to go to the fourth house on the left on Long Road.” (Resp. Exh. F at 752-55.)

         Detective Knoll testified that he then contacted Corporal John Dolen and told him where to go. (Resp. Exh. F at 755.) Detective Knoll testified further:

A. . . . Probably three minutes after that I received a phone call back from Corporal Dolen, who said, in fact, that they were at the Long residence and at that time they had two people that were deceased.
Q. At that time what did you do?
A. Sergeant Carle started making necessary phone calls to activate other detectives because at this point we're working a double homicide. He was on the phone. I basically stayed with Carmen[12]Deck. Then once after Sergeant Carle made his phone calls Carmen was placed back in his holdover cell in the fourth precinct. We left and went to the actual crime scene on Long Road.
Q. Now, did you attempt to check out his story about Jim Boliek?
A. Yes, I did.

(Id. at 755-56.)

         Deck contends that trial counsel was ineffective for failing to object to Detective Knoll's testimony regarding Corporal Dolen's out-of-court statement regarding two deceased persons found at the location described by Deck, arguing that the statement was hearsay and inadmissible at trial. Deck argues that if counsel had objected to this testimony, the jury would have been advised to disregard the statement, resulting in a reasonable probability that the outcome of the trial would have been different. Because Detective Knoll's testimony did not constitute hearsay, the claim fails.

         The Sixth Amendment secures the right of an accused to be confronted with the witnesses against him. This protection serves to bar the introduction of testimonial hearsay. Crawford v. Washington, 541 U.S. 36, 51 (2004). However, a statement offered for its effect on the listener rather than for the truth of the matter asserted is not hearsay. United States v. Wright, 739 F.3d 1160, 1170 (8th Cir. 2014). Such non-hearsay statements include those offered to explain the reasons for or propriety of a police investigation. United States v. Malik, 345 F.3d 999, 1001 (8th Cir. 2003).

         Here, testimony of Corporal Dolen's out-of-court statement was offered for the purpose of explaining why Detective Knoll continued in his investigation and the manner by which he did - that is, that a crime scene had been established which was linked to Deck's account implicating Jim Boliek, and that further investigation into the scene and into Boliek needed to be conducted. See, e.g., United States v. Brooks, 645 F.3d 971, 977 (8th Cir. 2011) (statement explained why officers went to residence and why they would be more interested in apprehending certain individual); Suggs v. Stanley,324 F.3d 672, 681-82 (8th Cir. 2003) (upholding admission of officer's statement about what dispatcher told him because it was offered to show why officer went to a specific house). Further, Deck squarely placed the propriety of the investigation into issue throughout the trial of the case, with repeated challenges to the validity of his confession ...


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