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).
Next, this Court denied petitioner's petition for writ of
habeas corpus (#35). Johnson v. Steele, No.
4:13-CV-2046-SNLJ, 2018 WL 1083577, at *1 (E.D. Mo. Feb. 28,
2018). Petitioner now asks the Court to alter or amend its
memorandum and order that denied the petition for writ of
habeas corpus. (#142.) The motion is denied.
asks the Court to alter or amend the memorandum and order
under Rule 59(e) of the Federal Rules of Civil Procedure.
“Motions under Rule 59(e) ‘serve the limited
function of correcting manifest errors of law or fact or to
present newly discovered evidence' and ‘cannot be
used to introduce new evidence, tender new legal theories, or
raise arguments which could have been offered or raised prior
to entry of judgment.'” Ryan v. Ryan, 889
F.3d. 499, 507 (8th Cir. 2018) (quoting United States v.
Metro. St. Louis Sewer Dist., 440 F.3d 930, 933 (8th
Cir. 2006)). This Court has broad discretion in deciding the
motion. Id. at 507-08.
petitioner asks the Court to reconsider its rulings on nine
of his original twenty-six claims. He also renews his request
to amend the habeas petition to add three new claims.
2. In this claim, petitioner argues the prosecutor
violated his due process rights when he argued that
petitioner committed first-degree murder because petitioner
made a “conscious decision” to kill Sgt. McEntee.
Petitioner believes this improperly blurred the line between
first- and second-degree murder.
trial counsel did not object to the prosecutor's
argument, so the issue was not properly preserved for appeal.
Thus, on direct appeal, the Missouri Supreme Court reviewed
the claim for plain error and found none. Johnson,
284 S.W.3d at 574. On habeas review, this Court held that
Claim 2 was procedurally defaulted because it was not
properly preserved in the trial court. Johnson, 2018
WL 1083577, at *4. In so holding, this Court relied on
binding Eighth Circuit precedent that held “a federal
habeas court cannot reach an otherwise unpreserved and
procedurally defaulted claim merely because a reviewing state
court analyzed that claim for plain error.” Clark
v. Bertsch, 780 F.3d 873, 874 (8th Cir. 2015). Thus,
this Court committed no manifest error of law.
then argues, even if the claim is defaulted, he has shown
“cause”-his trial counsel's allegedly
ineffective assistance of counsel-to excuse the default.
Petitioner is correct that procedural default may be excused
if it was the result of ineffective assistance of counsel.
Edwards v. Carpenter, 529 U.S. 446, 451 (2000).
“Not just any deficiency in counsel's performance
will do, however; the assistance must have been so
ineffective as to violate the Federal Constitution.”
Id. And as required, petitioner properly exhausted
this ineffective assistance of counsel claim in state court.
(Indeed, petitioner's habeas Claim 23 raises this very
issue, which the Court discusses below.)
question is whether the performance of petitioner's trial
counsel fell below the objective standard of reasonableness,
Strickland v. Washington, 466 U.S. 668, 687-88
(1984), and, if so, whether counsel's ineffective
performance prejudiced petitioner, id. at 687. This
is a high bar, and defendant cannot meet it. Even if trial
counsel provided ineffective assistance (which this Court
seriously doubts), this claim still must fail: there's
“no reasonable probability that, but for counsel's
[failure to object], the result of the proceeding would have
been different, ” id. at 694. Indeed, the jury
was properly instructed on the element of deliberation.
Johnson, 406 S.W.3d at 904. And under Missouri law,
we assume the jury followed the instruction. Tisius v.
State, 183 S.W.3d 207, 216 (Mo. banc 2006). During
closing argument, the prosecutor read the definition of
deliberation (as correctly defined in the statute) and argued
why he believed the evidence showed that petitioner
deliberated. Johnson, 406 S.W.3d at 904-05. Because
petitioner's ineffective assistance of counsel claim
fails, the procedural default is not cured.
Court finds no manifest errors of law or fact in its denial
of Claim 2.
23. In this claim, petitioner argues that trial
counsel provided ineffective assistance of counsel by failing
to object to the prosecutor's repeated
“misconduct” during closing arguments. Petitioner
identified several arguments that his trial counsel should
have objected to (#35 at 286-95), one of which was the
prosecutor's argument that petitioner made a
“conscious decision” to kill, as explained above
in Claim 2. On habeas review, this Court held that Claim
23-except for the part related to trial counsel's failure
to object to the prosecutor's “conscious
decision” argument-was defaulted because petitioner did
not raise those parts on post-conviction appeal.
Johnson, 2018 WL 1083577, at *7. Petitioner does not
challenge the defaulted parts of Claim 23.
petitioner claims the Court improperly rejected the
non-defaulted part of Claim 23 “because the Missouri
Supreme Court ruled that the prosecutor's
‘conscious decision' argument did not amount to
‘plain error.'” (#142 at 5.) Not so. In fact,
the analysis applying the Antiterrorism and Effective Death
Penalty Act (“AEDPA”) review standards to the
non-defaulted part of Claim 23 was inadvertently omitted from
the original memorandum and order. Thus, the Court's
memorandum and order denying the habeas petition will be
amended to include this analysis.
post-conviction appeal, the Missouri Supreme Court rejected
petitioner's claim that trial counsel provided
ineffective assistance by failing to object to the
prosecutor's “conscious decision” argument
during closing argument. Johnson, 406 S.W.3d at 904-
05. The Missouri Supreme Court found that petitioner could
not show prejudice because (1) the jury was properly
instructed and (2) the prosecutor read the definition of
deliberation in closing argument. Id. On habeas
review, petitioner argued that this decision was an
unreasonable application of Strickland (#35 at 288).
See 28 U.S.C. § 2254(d)(1). Because this Court
has independently concluded that petitioner cannot satisfy
Strickland's prejudice prong, see Claim 2, it
necessarily follows that the Missouri Supreme Court did not
unreasonably apply Strickland in reaching the same
petitioner argued the Missouri Supreme Court unreasonably
determined the facts, see 28 U.S.C. §
2254(d)(2), when it concluded “[a]ny deficiencies in
the [State's] argument were corrected by the trial
court's instructions to the jury.”
Johnson, 406 S.W.3d at 905 (second alteration in
original) (quoting State v. Clemons, 946 S.W.2d 206,
230 (Mo. banc 1997)). The jury was instructed that petitioner
could be found guilty of first-degree murder only if he
deliberated. The jury was also instructed that deliberation
is defined as cool reflection for any length of time.
According to plaintiff, “[a]n instruction defining
‘deliberation' as ‘cool reflection'
cannot cure the [prosecutor's alleged error of equating
cool reflection and conscious decision], because it does not
contradict the prosecutor's argument that a
‘conscious decision' means ‘cool
reflection.'” (# 142 at 4.)
this Court can tell, this is really a legal argument framed
as a factual one. The Missouri Supreme Court made a legal
conclusion-that petitioner was not prejudiced under
Strickland-in light of the proper instruction. For
the reasons explained above, the Missouri Supreme Court did
not unreasonably apply Strickland. If this was
indeed a factual determination, this Court finds that it was
22. In this claim, petitioner argues
“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.”
Petitioner argues in his motion to alter or amend that,
“[i]f deliberation requires nothing beyond a
‘conscious decision, ' then there is no principled
way to determine whether any particular ‘knowing'
and intentional killing is a first degree murder instead of a
second degree murder.” (142 at 8.)
the jury was properly instructed on the definition of
deliberation-that instruction did not say deliberation means
conscious decision. As for the Missouri statutory scheme,
again, the Court “agrees with every state court to
consider the issue and finds that Missouri's death
penalty statute does narrow the class of death-eligible
defendants and is not arbitrarily enforced.”
Johnson, 2018 WL 1083577, at *24.
3. In this claim, petitioner argues that the
prosecution suppressed material exculpatory evidence
“by failing to disclose that [it] shepherded trial
witness Jermaine Johnson through his probation proceedings .
. . during petitioner's trial.” This is a
Brady claim, which has three elements: (1) the
existence of exculpatory evidence, (2) the failure of the
state to disclose ...