United States District Court, E.D. Missouri, Eastern Division
AMENDED MEMORANDUM AND ORDER
STEPHEN N. LIMBAUGH, JR. UNITED STATES DISTRICT JUDGE.
accordance with the Court's ruling on petitioner's
motion to alter or amend judgment (#142), this amended
memorandum and order will supersede the memorandum and order
filed on February 28, 2018.
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
upper torso. 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 victim's son.
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
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 petitioner's
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
Before 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 id.
to exhaust can lead to procedural default. When a
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. If a 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.
procedural law-collateral post-conviction
proceedings. Under 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
counsel. In 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.
motion to alter or amend, petitioner argued-for the first
time-even if the claim is defaulted, he has shown
“cause”-his trial counsel's allegedly
ineffective assistance of counsel-to excuse the default.
Although new legal theories are inappropriate when raised
under a Rule 59(e) motion, the Court will briefly address the
trial counsel provided ineffective assistance (which this
Court seriously doubts), this claim must still fail because
petitioner cannot show prejudice: there's “no
reasonable probability that, but for counsel's [failure
to object], the result of the proceeding would have been
different, ” Strickland v. Washington, 466
U.S. 668, 694 (1984). The Court will analyze the prejudice
prong below, under Claim 23. Because petitioner's
ineffective assistance of counsel claim fails, the procedural
default is not cured.
assuming the claim was 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 stress disorder
issue, itself, was not defaulted and is presented in Claim
18. To the extent that Claim 11 is not defaulted, it is
subsumed by Claim 18 and will be addressed in that
partially defaulted Claim 11 and the wholly defaulted Claim
19 are not excused under the narrow exception of
Martinez. There is no substantial showing of the
denial of the constitutional right of effective assistance of
counsel. To be sure, petitioner points out a number of
specific incidents of child abuse and neglect that were
discovered by post-conviction counsel and post-conviction
appeal counsel. But the record shows that trial counsel did
in fact conduct a reasonable investigation into
petitioner's childhood, including their receipt and
review of more than 1600 pages of juvenile records.
Furthermore, trial counsel made a strategic choice to relate
petitioner's history of childhood abuse through his
grandmother, aunt, and the social workers and doctors who
cared for him. The additional evidence petitioner now offers
merely bolsters that which was already introduced in
mitigation. As such, petitioner cannot establish
also requests an evidentiary hearing (#94) on Claim 19. As
explained above, the claim is without merit, and the request
for an evidentiary hearing is denied. See Wilson v.
Kemna, 12 F.3d 145, 146 (8th Cir. 1994).
claim is that petitioner's “death sentence violates
the Eighth Amendment on account of his youth and mental
illness at the time of this offense.” Petitioner
concedes that this claim was not included on direct appeal.
Nonetheless, this Court granted a stay of the proceedings to
allow petitioner to raise this and other issues before the
Missouri Supreme Court by way of Motion to Recall the
Mandate. But the Supreme Court summarily overruled the motion
without opinion. Under these circumstances, the Motion to