Johnson v. Steele

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

Case No. 4:13-CV-2046-SNLJ

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION

February 28, 2018

MEMORANDUM AND ORDER

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 priorinconsistent 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...