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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.

          MEMORANDUM AND ORDER

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

         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). 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.

         Petitioner 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.

         Specifically, 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.

         Claim 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.

         Petitioner's 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.

         Petitioner 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.)

         So the 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.

         The Court finds no manifest errors of law or fact in its denial of Claim 2.

         Claim 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.

         Instead, 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.

         On 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 conclusion.

         Next, 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.)

         As best 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 not unreasonable.

         Claim 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.)

         Again, 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.

         Claim 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 ...


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