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Johnson v. Steele

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

June 15, 2018

KEVIN JOHNSON, Petitioner,
v.
TROY STEELE, Respondent.

          AMENDED MEMORANDUM AND ORDER

          STEPHEN N. LIMBAUGH, JR. UNITED STATES DISTRICT JUDGE.

         In 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.

         A St. 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.

         A brief 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 saw [petitioner].
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 handgun.
[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 walk away.
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 officer.

Johnson, 284 S.W.3d at 567-68.

         GUILT PHASE CLAIMS

         Claim 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.

         Claim 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.

         Claim 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 petitioner's trial.

         Claim 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.

         Claim 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 Amendments.

         Claim 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.

         Claim 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.

         Claim 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.

         Claim 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 Fourteenth Amendments.

         Claim 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.

         PENALTY PHASE CLAIMS

         Claim 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.

         Claim 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.

         Claim 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.

         Claim 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.

         Claim 15: The “depravity of mind” aggravating circumstance, as applied at petitioner's trial, was impermissibly vague and broad under the Eighth and Fourteenth Amendments.

         Claim 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.

         Claim 17: Petitioner's death sentence violates the Eighth Amendment on account of his youth and mental illness at the time of the offense.

         CLAIMS IMPLICATING BOTH PHASES OF TRIAL

         Claim 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.

         Claim 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.

         Claim 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.

         Claim 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 upbringing.

         Claim 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.

         Claim 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.

         Claim 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.

         Claim 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 trial.

         Claim 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.

         DEFAULTED CLAIMS

         A. Standard of Review-Exhaustion and Procedural Default

         Exhaustion. 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.

         Failure 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 (1991).

         Missouri 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. Id.

         Missouri 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)).

         The 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.” Id.

         As for 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).

         This 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.

         B. Analysis

         Based 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 below.

         Claim 2

         This is 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.

         In his 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 argument.

         Even if 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.

         Finally, 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 4

         This 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 10

         This 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 failure.

         Claims 11 and 19

         These 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.”

         Petitioner 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 connection.

         The 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 Strickland prejudice.

         Petitioner 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 17

         This 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 ...


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