United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
STEPHEN N. LIMBAUGH, JR. UNITED STATES DISTRICT JUDGE.
Louis County jury found petitioner Kevin Johnson
(“petitioner”) guilty of one count of
first-degree murder, and the trial court, following the
jury's recommendation, sentenced petitioner to death. The
Missouri Supreme Court affirmed the conviction and sentence
on direct appeal, State v. Johnson, 284 S.W.3d 561
(Mo. banc 2009), and later affirmed the denial of
petitioner's motion for post-conviction relief,
Johnson v. State, 406 S.W.3d 892 (Mo. banc 2013).
This case is now before the Court on petitioner's
313-page “Petition for Writ of Habeas Corpus”
(#35). The state filed a response in opposition, and
petitioner filed a “Traverse” (#88) in support of
his petition. Also pending are petitioner's Motions for
Discovery (#91) and Request for a Hearing (#94), which this
Court will address in conjunction with the habeas petition.
Disposition of the motions is governed by 28 U.S.C. §
2254, part of the Antiterrorism and Effective Death Penalty
Act of 1996 (“AEDPA”). Having reviewed the
voluminous filings from both parties, the petition and
accompanying motions are denied.
summary of the case, taken from the Missouri Supreme
Court's opinion on direct appeal is as follows:
[Petitioner] had an outstanding warrant for a probation
violation resulting from a misdemeanor assault. Around 5:20
in the evening of July 5, 2005, Kirkwood police, with
knowledge of the warrant, began to investigate a vehicle
believed to be [petitioner's] at this residence in the
Meacham Park neighborhood. The investigation was interrupted
at 5:30 when [petitioner's] younger brother had a seizure
in the house next door to [petitioner's] residence. The
family sought help from the police, who provided assistance
until an ambulance and additional police, including Sgt.
McEntee, arrived. [Petitioner's] brother was taken to the
hospital, where he passed away from a preexisting heart
condition. [Petitioner] was next door during this time, and
the police suspended their search for [petitioner] and never
After the police left, [petitioner] retrieved his black, nine
millimeter handgun from his vehicle. When talking with
friends that evening, [petitioner] explained his
brother's death as, “that's f___ up, man. They
wasn't trying to help him, that he was too busy looking
for me.” Around 7:30, two hours after
[petitioner's] brother had the seizure, Sgt. McEntee
responded to a report of fireworks in the neighborhood and
[petitioner] was nearby. As Sgt. McEntee spoke with three
juveniles, [petitioner] approached Sgt. McEntee's patrol
car and squatted down to see into the passenger window.
[Petitioner] said “you killed my brother” before
firing his black handgun approximately five times. Sgt.
McEntee was shot in the head and upper torso, and one of the
juveniles was hit in the leg. [Petitioner] reached into the
patrol car and took Sgt. McEntee's silver .40 caliber
[Petitioner] proceeded to walk down the street with the black
and silver handguns. He then saw his mother and her
boyfriend. [Petitioner] told his mother, “that m___
f___ let my brother die, he needs to see what it feel[s] like
to die.” His mother replied, “that's not
true.” [Petitioner] left his mother and continued to
Meanwhile, Sgt. McEntee's patrol car rolled down the
street, hit a parked car, and then hit a tree before coming
to rest. Sgt. McEntee, alive but bleeding and unable to talk,
got out of the patrol car and sat on his knees. [Petitioner]
reappeared, shot Sgt. McEntee approximately two times in the
head, and Sgt. McEntee collapsed onto the ground.
[Petitioner] also went through Sgt. McEntee's pockets.
Sgt. McEntee was shot a total of seven times in the head and
Six of the wounds were serious but did not render Sgt.
McEntee unconscious or immediately incapacitated. One wound
was a lethal injury that caused Sgt. McEntee's death. All
seven wounds were from a nine millimeter handgun.
[Petitioner] left the scene cursing and drove to his
father's house. [Petitioner] spent three days at a family
member's apartment before arrangements were made for
[petitioner] to surrender to a family member who was a police
Johnson, 284 S.W.3d at 567-68.
1: Petitioner was denied due process and equal protection of
the law under Batson v. Kentucky, 476 U.S. 79
(1986), when the prosecutor struck African American
veniremember Debra Cottman because of her race.
2: Prosecutorial misconduct violated petitioner's right
to due process and deprived him of a fundamentally fair trial
on the question of whether he committed first-degree murder.
3: The prosecution violated due process by failing to
disclose that the prosecutor shepherded trial witness
Jermaine Johnson through his probation proceedings, which
were repeatedly continued at the state's behest during
4: Petitioner's Fifth and Fourteenth Amendment rights
were violated by the prosecution's use of his taped
interrogation despite petitioner's clear and unambiguous
invocation of his right to remain silent.
5: Trial counsel deficiently failed to object to the presence
of uniformed police officers throughout the courtroom
gallery, which deprived petitioner of a fundamentally fair
trial as guaranteed by the Sixth, Eighth, and Fourteenth
6: Trial counsel rendered ineffective assistance of counsel,
in violation of petitioner's rights under the Sixth and
Fourteenth Amendments, by failing to object to the admission
of State's Exhibit 88, a reenactment video, which was
used by the state as substantive evidence of deliberation at
the guilt phase of trial.
7: Trial counsel rendered ineffective assistance, in
violation of petitioner's rights under the Sixth and
Fourteenth Amendments, by failing to impeach the testimony of
Norman Madison, a key witness for the prosecution, with his
prior inconsistent statement to police about what petitioner
said after the shooting, which related directly to the
central issue of whether petitioner acted with deliberation.
8: Counsel saddled petitioner's trial with structural
error, and deprived him of the effective assistance of
counsel guaranteed by the Sixth and Fourteenth Amendments, by
failing to apprise the court of all relevant circumstances
underlying the prosecution's race-based peremptory strike
of African-American venireperson Debra Cottman.
9: Counsel were ineffective for failing to object to a
shackling device of which the jury was aware, which
undermined the fairness of both phases of trial and violated
petitioner's rights under the Sixth, Eighth, and
10: Trial counsel performed ineffectively under the Sixth
Amendment by failing to review, and use at trial, crime scene
photographs that would have cast doubt on the state's
theory that petitioner deliberated before the second and
fatal shooting of Sgt. McEntee.
11: Trial counsel were constitutionally ineffective
in failing to thoroughly investigate and discover additional
DFS and other records documenting petitioner's family and
social history and in failing to offer at the penalty phase
specific mitigating evidence revealed by those records of the
extreme nature of childhood abuse, neglect, and privation
that petitioner suffered.
12: Trial counsel rendered ineffective assistance of
counsel by failing to investigate and present the testimony
of Lavonda Bailey in mitigation at the penalty phase of
petitioner's trial, in violation of his rights under the
Sixth and Fourteenth Amendments.
13: The trial court violated petitioner's
constitutional rights to confrontation, to due process, and
to a reliable sentencing proceeding by admitting hearsay
evidence describing the crime's impact on the
14: Petitioner's rights to a fair and impartial
jury, to be free from cruel and unusual punishments, and to
due process of law, were violated by the for-cause exclusion
of Venireperson Tompkins, whose willingness to impose the
death penalty for “terrible crimes” made her
exclusion from trial unconstitutional.
15: The “depravity of mind” aggravating
circumstance, as applied at petitioner's trial, was
impermissibly vague and broad under the Eighth and Fourteenth
16: Petitioner's death sentence is
unconstitutional under the Sixth and Fourteenth Amendments
because the instructions did not require the jury to find
unanimously and beyond a reasonable doubt that the mitigating
circumstances do not outweigh the aggravating circumstances,
a finding of fact prerequisite to death-eligibility under the
Missouri capital sentencing scheme.
17: Petitioner's death sentence violates the
Eighth Amendment on account of his youth and mental illness
at the time of the offense.
IMPLICATING BOTH PHASES OF TRIAL
18: Trial counsel rendered ineffective assistance at
both the guilt and penalty phases of petitioner's trial
by failing to investigate, discover, and present mental
health evidence of diminished capacity, in violation of his
rights under the Sixth and Fourteenth Amendments.
19: Trial counsel were constitutionally ineffective
at both the guilt and penalty phases for failing to
investigate, develop, and present evidence demonstrating the
deep and pervasive abandonment and neglect, as well as the
horrific physical, emotional, and sexual abuse that
petitioner suffered and witnessed throughout his childhood.
20: Trial counsel offered prejudicially ineffective
assistance, and violated petitioner's rights under the
Sixth and Fourteenth Amendments, by failing to investigate
and present evidence of petitioner's experiences with
violent police officers, including Sgt. McEntee.
21: Trial counsel rendered prejudicially ineffective
assistance, and violated petitioner's rights under the
Sixth and Fourteenth Amendments, by failing to investigate,
develop, and present evidence that petitioner witnessed and
suffered from pervasive community violence throughout his
22: Petitioner's conviction and sentence violate
the Eighth and Fourteenth Amendments because Missouri's
statutory scheme does not adequately define first-degree
murder or meaningfully narrow the class of defendants who are
eligible for the death penalty.
23: Trial counsel rendered prejudicially ineffective
assistance, and violated petitioner's rights under the
Sixth and Fourteenth Amendments, by failing to object to the
prosecutor's repeated misconduct during closing arguments
in both phases of the trial.
24: Trial counsel performed ineffectively by failing
to object to inadmissible evidence that prejudiced both
phases of the defense, in violation of petitioner's
rights under the Sixth and Fourteenth Amendments.
25: Trial counsel performed ineffectively, and
violated petitioner's rights under the Sixth and
Fourteenth Amendments, by failing to move for recusal of the
trial judge, who had also served as Family Court judge during
the proceedings that determined and monitored
petitioner's custody in the years after he was removed
from his mother-proceedings that were at issue in
26: Petitioner's Sixth, Eighth, and Fourteenth
Amendment rights were violated by the cumulative effect of
the errors described in this petition, thereby invalidating
his conviction and death sentence.
Standard of Review-Exhaustion and Procedural Default
presenting a claim in a federal habeas petition, a petitioner
must first properly exhaust state remedies. 28 U.S.C. §
2254(b)(1). To exhaust state remedies, a petitioner must
fairly present the “substance” of the claim to
the state courts. Anderson v. Harless, 459 U.S. 4, 6
(1982) (per curiam). The petitioner's federal court claim
must assert the same factual and legal bases as the state
court claim. Flieger v. Delo, 16 F.3d 878, 885 (8th
Cir. 1994). To exhaust a claim, the petitioner must raise the
claim on direct appeal or in state post-conviction
proceedings, including on post-conviction appeal. See
to exhaust can lead to procedural default.
petitioner has not properly exhausted state remedies on a
claim-and the time for doing so has passed-he has
procedurally defaulted that claim. Welch v. Lund,
616 F.3d 756, 758 (8th Cir. 2010). In this situation, the
federal court should not review the claim unless the
petitioner can show (1) “cause and prejudice”
excusing that procedural default or (2) actual innocence.
Id. at 760. Of course, a claim is also procedurally
defaulted if the petitioner actually raised the claim in
state court, and the state court disposed of the claim based
on a state law procedural bar. Caldwell v.
Mississippi, 472 U.S. 320, 327 (1985). Again, the
federal court should not review that claim unless the
petitioner shows (1) cause and prejudice or (2) actual
innocence. Coleman v. Thompson, 501 U.S. 722, 729-30
procedural law-direct appeal.
claim is preserved in the trial court, Missouri appellate
courts determine whether an error occurred and, if so,
whether the error was prejudicial. State v. Johnson,
207 S.W.3d 24, 34 (Mo. banc 2006). If a claim is not
preserved in the trial court, Missouri appellate courts may
still review the claim under the plain-error standard.
Id. But these unpreserved claims are defaulted for
federal habeas purposes. Clark v. Bertsch, 780 F.3d
873, 876 (8th Cir. 2015). Thus, even if the appellate court
reviewed an unpreserved claim, it is still defaulted for
federal habeas purposes. Id.
procedural law-collateral post-conviction
Missouri law, claims of trial court error that could be
included on direct appeal are not cognizable in
post-conviction review. Zink v. State, 278 S.W.3d
170, 191 (Mo. banc 2009) (“A movant cannot use a Rule
29.15 motion to raise claims that could have been, but were
not, raised on direct appeal except in rare and exceptional
circumstance.”). Ineffective assistance of counsel
claims must first be raised in a Rule 29.15 collateral
proceeding. Mo. Sup. Ct. R. 29.15 (stating that “Rule
29.15 provides the exclusive procedure by which such person
may seek relief in the sentencing court” for
ineffective assistance of counsel, among other violations).
Missouri circuit courts shall not entertain successive Rule
29.15 motions. Id. “[A]ny allegations or
issues that are not raised in the Rule 29.15 motion are
waived on appeal, ” including ineffective assistance of
counsel claims. Barnett v. Roper, 941 F.Supp.2d
1099, 1112 (E.D. Mo. 2013) (quoting State v. Clay,
975 S.W.2d 121, 141 (Mo. banc 1998)).
federal cause requirement and ineffective assistance of
Martinez v. Ryan, 566 U.S. 1 (2012), the Supreme
Court announced an exception to the longstanding
Coleman rule that ineffective assistance of
post-conviction counsel cannot establish cause to overcome
procedural default. The Supreme Court held:
Where, under state law, claims of ineffective assistance of
trial counsel must be raised in an initial-review collateral
proceeding, 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.
Martinez, 566 U.S. at 17. To satisfy
Martinez, petitioner must show that his counsel in
the initial post-conviction proceeding was ineffective under
the standards of Strickland. Id. at 14.
Petitioner must also show “that the underlying
ineffective-assistance-of-trial-counsel claim is a
substantial one, which is to say that the [petitioner] must
demonstrate that the claim has some merit.”
what amounts to a “substantial” claim, the
Supreme Court in Martinez suggested (by citing
Miller-El v. Cockrell, 537 U.S. 322');">537 U.S. 322 (2003)) that
courts should apply the standards for certificates of
appealability to issue. Id.; see also
Barnett, 941 F.Supp.2d at 1113. Under 28 U.S.C. §
2253(c)(2), a certificate of appealability may issue only if
“a petitioner has made a substantial showing of the
denial of a constitutional right.” “A substantial
showing is a showing that issues are debatable among
reasonable jurists, a court could resolve the issues
differently, or the issues deserve further
proceedings.” Cox v. Norris, 133 F.3d 565, 569
(8th Cir. 1997).
exception is narrow. By its own plain language,
Martinez applies only to ineffective assistance of
trial counsel claims that initial post-conviction counsel
failed to raise. Any other claims of ineffective assistance
of counsel-whether by direct appeal counsel, initial
post-conviction counsel, or post-conviction appeal
counsel-are not recognized by Martinez.
on these standards, the state contends that a number of
petitioner's claims are procedurally defaulted. This
Court agrees as to Claims 2, 4, 10, part of 11, 17, 19, 20,
part of 23, 24, and 25. At the outset, this Court observes
that petitioner makes no claim of actual innocence as a
“gateway” to habeas relief. Thus, he may bring a
defaulted claim only if he shows cause and prejudice excusing
the default. The Court also notes that petitioner makes no
cause-and-prejudice arguments other than those discussed
a claim that the prosecutor's closing argument was
improper in the guilt phase, and trial counsel failed to
object. Petitioner concedes that trial counsel did not
properly preserve the issue, but he argues the claim was
nonetheless preserved because the Missouri Supreme Court
reviewed the claim for “plain error.” But, as
noted, on federal habeas review, a petitioner may not cure a
defaulted claim of trial court error by asserting the claim
was addressed under plain error on appeal. Clark,
780 F.3d at 876. Petitioner's reasoning apparently is
that the Missouri Supreme Court's willingness to review
the claim for plain error obviates the need for an objection
at trial. Clark v. Bertsch is to the contrary and
directly on point. And even if the claim were not
procedurally defaulted, the Missouri Supreme Court held that
the closing argument was not plain error under state law.
Johnson, 284 S.W.3d at 574. “A federal court
may not re-examine a state court's interpretation and
application of state law.” Schleeper v.
Groose, 36 F.3d 735, 737 (8th Cir. 1994).
claim-based on an alleged Miranda violation-stems
from the trial court's admitting petitioner's taped
interrogation. The claim is procedurally defaulted because
there was no objection at trial. Under plain error review on
direct appeal, the Missouri Supreme Court ruled that there
was no Miranda violation and that the interrogation
video was not improperly admitted. Johnson, 284
S.W.3d at 582. Again, Clark v. Bertsch precludes
federal habeas review of this claim reviewed only under plain
error, and this Court, having closely reviewed the record,
concurs in the Missouri Supreme Court's ruling.
claim is based on ineffective assistance of trial counsel in
failing to use crime scene photos at trial to “cast
doubt” on the state's theory of petitioner's
deliberation. This claim is defaulted because it was not
included in petitioner's appeal from the denial of his
post-conviction motion. Petitioner does not deny this
11 and 19
are claims of ineffective assistance of trial counsel, both
pertaining to the failure of counsel to investigate and
introduce evidence of petitioner's background. In Claim
11, petitioner complains that trial counsel failed “to
thoroughly investigate and discover additional DFS and other
records documenting [petitioner's] family and social
history and in failing to offer at the penalty phase specific
mitigating evidence revealed by those records of the extreme
nature of childhood abuse, neglect, and privation that
[petitioner] suffered.” Similarly, in Claim 19,
petitioner argues that trial counsel failed in both the guilt
and penalty phases “to investigate, develop and present
evidence demonstrating the deep and pervasive abandonment and
neglect, as well as the horrific physical, emotional, and
sexual abuse that [petitioner] suffered and witnessed
throughout his childhood.”
did not raise these claims in his post-conviction motion, nor
on post-conviction appeal, except that Claim 11 was raised
solely in the context of trial counsel's failure to raise
a defense of diminished capacity based on acute stress
disorder in the guilt phase and for mitigation in the penalty
phase. Although petitioner now argues that the Claim 11
evidence of family and social history should have been
presented independently and in addition to evidence in
support of acute distress disorder, and especially for
mitigation in the penalty phase, it is defaulted except in
that limited context. Petitioner concedes that Claim 19 was
not raised at all and is wholly defaulted. This Court notes,
however, that the diminished capacity/acute ...