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Deck v. Steele

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

February 20, 2018

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

          MEMORANDUM AND ORDER

          CATHERINE D. PERRY UNITED STATES DISTRICT JUDGE.

         On April 13, 2017, I granted petitioner Carman L. Deck's petition for writ of habeas corpus on two of his thirty-two grounds for relief. I entered judgment that same date, vacating his death sentence and ordering that he be sentenced to life in prison without the possibility of parole. I denied a certificate of appealability on his remaining claims. Deck now moves under Fed.R.Civ.P. 59(e) for me to alter or amend my judgment on seventeen claims on which I denied relief or, in the alternative, grant a certificate of appealability on those claims. Upon careful consideration, I will deny Deck's motion.

         Legal Standard

         Under Rule 59(e), a court may alter or amend a judgment upon a motion filed no later than twenty-eight days after entry of the judgment. Rule 59(e) gives the court power to rectify its own mistakes following entry of judgment. White v. New Hampshire Dep't of Employment Sec., 455 U.S. 445, 450 (1982). Rule 59(e) motions are limited, however, to “correcting manifest errors of law or fact or to present newly discovered evidence.” United States v. Metro. St. Louis Sewer Dist., 440 F.3d 930, 933 (8th Cir. 2006) (internal quotation marks and citation omitted). They cannot be used to relitigate old matters or to raise new arguments, tender new legal theories, or present evidence that could have been offered or raised before the entry of judgment. Exxon Shipping Co. v. Baker, 554 U.S. 471, 486 n.5 (2008); Metro. St. Loius Sewer Dist., 440 F.3d at 933. A Rule 59(e) motion “is not intended to routinely give litigants a second bite at the apple, but to afford an opportunity for relief in extraordinary circumstances.Barnett v. Roper, 941 F.Supp.2d 1099, 1104 (E.D. Mo. 2013) (internal quotation marks and citation omitted) (emphasis in Barnett). A district court enjoys broad discretion in determining whether to grant or deny a Rule 59(e) motion. Metro. St. Louis Sewer Dist., 440 F.3d at 933.

         Discussion

         In his motion to alter or amend, Deck argues that I erred in finding several of his claims to be barred from federal habeas review by misapplying the law, failing to undergo the proper analysis, and/or failing to have an evidentiary hearing. He also challenges my substantive determination that several of his claims did not entitle him to habeas relief. Finally, he seeks a certificate of appealability on the claims. Deck does not present any newly discovered evidence.

         I will address each claim in turn.

         A. Ground 1 - Admission of Confession

         In the first ground of Deck's habeas petition, Deck claimed that his confession was obtained as a result of his unlawful arrest in violation of the Fourth Amendment. I found the claim not cognizable under Stone v. Powell, 428 U.S. 465 (1976), because the record showed that the State afforded Deck a full and fair opportunity to litigate the Fourth Amendment claim and Deck took full advantage of that opportunity. In his motion to alter or amend, Deck argues, as he did in his traverse supporting his habeas petition, that Stone v. Powell should not apply to capital cases, noting that the Supreme Court has applied the doctrine only to noncapital cases. Deck also raises a new argument, however, that Stone v. Powell no longer applies to any federal habeas case after the enactment of the Antiterrorism Effective Death Penalty Act (AEDPA). Deck cites Carlson v. Ferguson, 9 F.Supp.2d 654 (D.W.V. 1998), and Herrera v. McMaster, 225 F.3d 1176 (10th Cir. 2000), to support this argument.

         First, other than his repeated observation that the Supreme Court has not applied Stone v. Powell in the capital context, Deck presents nothing to persuade me that my previous finding of non-cognizability under this well-established Supreme Court doctrine was a manifest error of law or fact. To the extent Deck argues now that Stone v. Powell is generally inapplicable in federal habeas actions post-AEDPA, I note that Deck did not raise this argument or tender this legal theory on his original habeas claim despite now citing case law that was in existence at that time. Because Deck could have raised this legal theory and argument prior to entry of judgment, I will not address it here. Metro. St. Louis Sewer Dist., 440 F.3d at 933. Nevertheless, Deck's reliance on cases from West Virginia and the Tenth Circuit does not persuade me that Stone v. Powell no longer applies in the federal habeas context, especially given the Eighth Circuit's continued application of its holding. See, e.g., Chavez v. Weber, 497 F.3d 796 (8th Cir. 2007); Travis v. Norris, 306 Fed.Appx. 334 (8th Cir. 2009).

         Deck's motion to alter or amend my judgment on Ground 1 is denied.

         B. Ground 2 - Change of Venue

         In his second ground of the petition, Deck argued that his constitutional rights were violated when the trial court denied his request for change of venue, because the trial pool was tainted by extensive pretrial publicity given to the murders. In his motion to alter or amend, Deck argues that I erred when I accorded deference to the Missouri Supreme Court's conclusion that Deck was not denied a fair and impartial jury because of publicity, because that court failed to consider whether the jurors who served on Deck's guilt-phase jury were tainted by publicity indicative of a “community pattern of thought” as described in Irvin v. Dowd, 366 U.S. 717 (1961). Deck argues that because the Missouri Supreme Court failed to consider this standard, its decision was contrary to or involved an unreasonable application of clearly established federal law. Deck further argues that the Missouri Supreme Court's decision was based on an unreasonable determination of the facts. I disagree.

         While the Missouri Supreme Court did not use the phrase “community pattern of thought” in its decision, it nevertheless applied this reasoning in reaching its conclusion that the pretrial publicity in Deck's case did not result in a less-than-impartial jury. After meticulously detailing the extent of the publicity (nine newspaper articles and several television news broadcasts), when it occurred (within a few weeks of the murders), its measured effect on the public, the passage of time before trial (eighteen months), and the voir dire process, the court rejected Deck's argument that the community was so “saturated with publicity” about the case that its residents were biased and prejudiced against him. State v. Deck, 994 S.W.2d 527, 532-34 (Mo. banc 1999). Contrary to Deck's argument, the court's analysis was based on and consistent with clearly established federal law, and it reasonably applied this law to the facts of Deck's case. No. manifest error of law appears in my determination to not find otherwise.

         Nor is there any manifest error of fact. Despite Deck's cursory assertion that the Missouri Supreme Court unreasonably determined the facts in reaching its decision, he wholly fails to present any evidence - let alone clear and convincing evidence - to rebut the presumption of correctness I must accord these facts. See 28 U.S.C. § 2254(e)(1). Nevertheless, unlike the circumstances faced by the defendant in Irvin - i.e., jurors were exposed to a “barrage” of publicity in the few months immediately preceding trial, 90% of jurors on the venire panel had an opinion of his guilt, and petit jury contained eight out of twelve jurors who already thought he was guilty - the factual circumstances of Deck's case do not show that the “community pattern of thought” revealed such a level of deep and bitter prejudice throughout the community or a preconception of guilt that so permeated the minds of the jurors that their statements of impartiality should have been given little weight. Irvin, 366 U.S. at 727-28.

         Deck's motion to alter or amend my judgment on Ground 2 is denied.

         C. Grounds 5, 6 & 20 - Defaulted Claims of Ineffective Assistance of Trial Counsel

         Deck contends that I committed procedural error by failing to conduct an evidentiary hearing on these claims of ineffective assistance of trial counsel, arguing that I erroneously relied on Sweet v. Delo, 125 F.3d 1144 (8th Cir. 1997), in denying a hearing. Deck states that “Sweet is so different from this case as to be virtually irrelevant” (Petr.'s Sugg. in Supp., ECF #89 at p. 5), and argues that, unlike the claims in Sweet, his claims raised in Grounds 5, 6, and 20 were not procedurally barred. He also contends that, unlike the defendant in Sweet, he never had the opportunity to develop the factual bases of these claims in State court.

         As an initial matter, contrary to Deck's assertion, these claims are procedurally defaulted and barred from federal habeas review. (See Memo. & Order, ECF #86 at pp. 23-44, 56-67.) I am not required to have an evidentiary hearing on defaulted claims. Sweet, 125 F.3d at 1160 (“Because the bulk of Sweet's claims of ineffective assistance of trial counsel are procedurally barred, a hearing on those claims would get him nowhere.”). To the extent Deck attempts to relitigate the argument raised in his habeas petition and developed in his traverse that ineffective assistance of post-conviction counsel excused his default under Martinez v. Ryan, 566 U.S. 1 (2012), I thoroughly rejected this argument in my Order, and no manifest error of law or fact appears in my analysis. Nor has Deck shown extraordinary circumstances to warrant my revisiting this already thoroughly-litigated issue.

         Deck argues, however, that I legally erred by performing a “full merits” review of his underlying claims of ineffective assistance of trial counsel in making my determination that they were not substantial and did not give rise to a Martinez claim of ineffective assistance of post-conviction counsel. There was no error in conducting such an analysis. In the course of determining whether additional proceedings are warranted to consider defaulted claims of ineffective trial counsel, a court evaluates whether the underlying claims are substantial or potentially meritorious. Dansby v. Hobbs, 766 F.3d 809, 834 (8th Cir. 2014) (citing Sasser v. Hobbs, 735 F.3d 833, 850-51 (8th Cir. 2013)). This evaluation may include a Strickland[1] analysis of trial counsel's challenged performance and whether it prejudiced the defense. See, e.g., Id. at 834-40. Where the court's evaluation shows that trial counsel did not render ineffective assistance under Strickland, the court may find that the claims are not substantial and do not justify an equitable exception to procedural default. Id; see also Williams v. Wallace, No. 4:15CV00534 AGF, 2017 WL 6731722, at *5 (E.D. Mo. Dec. 29, 2017) (post-conviction counsel's assistance did not constitute cause for default because underlying claims were “devoid of any merit”).

         I evaluated Deck's underlying claims under Strickland and found that they were not substantial. Undergoing this type of evaluation was not error. Having found the claims not substantial, I further found that post-conviction counsel did not render ineffective assistance by failing to raise the claims in State court. This likewise was not error. I am not required to have an evidentiary hearing on claims that are not substantial and are procedurally barred from habeas review. Cf. Barnett, 941 F.Supp.2d at 1114, 1121 (evidentiary hearing granted only on underlying claim that court found “substantial”); McLaughlin v. Steele, 173 F.Supp.3d 855, 870 (E.D. Mo. 2016) (granting ...


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