Beck v. Steele

Filing 8

MEMORANDUM - For the reasons stated above, the petition of Kenneth W. Beck for a writ of habeas corpus is denied. Petitioner has made no substantial showing of the denial of any constitutional right. Therefore, the court does not issue a certificate of appealability. 28 U.S.C. §2253(c)(2). An appropriate Judgment Order is issued herewith. Signed by Magistrate Judge David D. Noce on 6/6/14. (KJS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

KENNETH W. BECK,
Petitioner,
v.
TROY STEELE,
Respondent.

)
)
)
)
)
)
)
)
)

No. 4:12 CV 1300 DDN

MEMORANDUM
This action is before the court upon the petition of Missouri state prisoner Kenneth
W. Beck for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 1.) The parties
have consented to the exercise of plenary authority by the undersigned United States
Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Doc. 6.) For the reasons set forth
below, the petition for a writ of habeas corpus is denied.

I. BACKGROUND
On January 22, 2009, the Circuit Court of Montgomery County found petitioner
Kenneth W. Beck guilty of murder in the first degree and armed criminal action
following a bench trial. (Doc. 5, Ex. B at 25.) On February 27, 2009, the court sentenced
petitioner to life in prison without parole for murder and twenty additional years for
armed criminal action to be served concurrently. (Id. at 26.) On February 2, 2010 the
Missouri Court of Appeals affirmed the conviction. (Id., Ex. E); State v. Beck, 302
S.W.3d 781 (Mo. Ct. App. 2010).
On April 1, 2010, petitioner filed a pro se motion for post-conviction relief under
Missouri Supreme Court Rule 29.15 in the circuit court of Montgomery County. (Doc. 5,
Ex. G at 3-12.) On July 19, 2010, with the assistance of appointed counsel, petitioner
filed an amended petition for post-conviction relief. (Id. at 13-23.) On September 24,

2010, the Circuit Court of Montgomery County denied post-conviction relief to the
petitioner. (Id. at 24-32.) On October 24, 2011, the Missouri Court of Appeals affirmed
the trial court’s denial of post-conviction relief. (Id., Ex. J); Beck v. State, 351 S.W.3d
250 (Mo. Ct. App. 2011).
On July 20, 2012, petitioner filed the instant habeas corpus petition under 28
U.S.C. § 2254. (Doc. 1.)
In denying petitioner’s direct appeal, the Missouri Court of Appeals described the
facts,

viewed

in

the

light

most

favorable

to

the

verdict,

as

follows:

On June 11, 2006 [petitioner] called Warren County 911 and stated
he had returned home to find his girlfriend, Stacie Hough (“the Victim”),
dead in his trailer. [Petitioner] directed the responding officers to the
Victim’s body in the back bedroom; she was cold to the touch and
exhibited facial swelling. Though the front door had been kicked in and
most of the trailer was in disarray, the bedroom appeared orderly and there
were no signs of struggle.
Dr. Jane Turner (“Dr. Turner”), the medical examiner in the case,
performed an autopsy on June 12, 2006. She determined that the Victim
had been strangled to death with a rope-like object, sometime around June
10, 2006, two days prior to her examination. Dr. Turner further testified
that she found no defensive wounds on the Victim’s neck or body – an
indication that she remained unconscious during the strangling. The
toxicology report showed that the Victim had recently ingested various
prescription medications, as well as cocaine. Dr. Turner testified, however,
that she would not still have been under the influence of cocaine at the time
of her death.
The police interviewed [petitioner] at the Warren County jail for
approximately one hour on the evening of June 11, 2006, though he was not
in custody or a suspect at that time. [Petitioner] told officers that he lived
with the Victim, but stated he had been with friends since the day before.
According to [petitioner], he left the trailer at approximately 10:30 p.m. on
June 10, 2006, and returned home at about 6:10 p.m. on June 11, 2006. He
discovered the front door kicked in and the Victim murdered in the back
bedroom. [Petitioner] provided a list of people who could attest to his
whereabouts during the preceding twenty-four hours. The officers spoke
with [petitioner’s] witnesses, none of whom corroborated his story.

-2 

Thus, police interviewed [petitioner] two additional times, once on
the afternoon of June 12, 2006, and again on the morning of June 13,
2006.[1] [Petitioner] also testified at trial. Though his version of events
varied slightly throughout the remainder of the proceedings, [petitioner]
consistently admitted to strangling the Victim to death with a hairdryer
electrical cord.
[Petitioner] provided the most details about the crime during his
third interview with police on June 13, 2006. He told them that the Victim
arrived home on the evening of June 10, 2006, and appeared to be under the
influence of drugs.[2] [Petitioner] became upset, and the two started to
argue. The Victim, according to [petitioner], attacked his character and
threw items at him. [Petitioner] followed her to the bedroom and punched
her in the face, whereupon the Victim lost consciousness. [Petitioner] said
he then began choking her with his hands. When that method proved
ineffective, however, [petitioner] went to get the hairdryer that the Victim
had been swinging at him. He said he tied the cord in a knot around the
Victim’s neck and strangled her for a few minutes until he believed her
dead.
[Petitioner] stated he then visited a friend’s house and began to drink
heavily. He said he paid the friend $500 in order to provide an alibi for
[petitioner] to the police. The next morning, June 11, 2006, [petitioner]
visited another friend, Charlene Best (“Ms. Best”), and paid her $500 for
the same reason. Ms. Best testified at trial that she saw [petitioner] on June
11, but denied that he paid her a bribe. She did state, however, that she
inquired about his girlfriend’s whereabouts and [petitioner] replied, “I
killed the bitch.”
At trial, [petitioner] testified that he strangled the Victim out of
anger during a heated argument, and stated he did not reflect or deliberate

1

 The

Missouri Court of Appeals included the following footnote: "All three
interviews with police were recorded on DVD, and [petitioner] was in
custody of the Warren County Jail between the second and third interview.
Law enforcement read [petitioner] his Miranda rights, Miranda v. Arizona,
384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), prior to the final two
interviews."
2

  The Missouri Court of Appeals included the following footnote: "After
police confronted [petitioner] with evidence of he and the Victim on video
surveillance at Kroger’s that evening, [petitioner] changed his story and
said the two began arguing when they returned from the grocery store."

-3 

on her killing. According to [petitioner], the Victim was swinging a
hairdryer at him as he followed her to the bedroom. He grabbed the
hairdryer from her and flung it to the floor. [Petitioner] then grabbed the
Victim, hit her in the face, and knocked her unconscious. At that point,
[petitioner] testified he grabbed the hairdryer, wrapped the cord around her
neck, and strangled her.
The trial court convicted [petitioner] of first-degree murder and
armed criminal action, and sentenced him to life imprisonment without the
possibility of parole.
(Doc. 5, Ex. E, Memorandum Supplementing Order at 2-4.)
II. PETITIONER’S GROUNDS FOR HABEAS CORPUS RELIEF
Petitioner alleges four grounds for relief in this habeas action:
(1)

The evidence was insufficient to support a finding of guilty beyond a
reasonable doubt for the charge of murder in the first degree.

(2)

Petitioner was denied his rights to due process of the law and to counsel at
all critical stages of proceedings because he did not have counsel at his
arraignment.

(3)

The trial court erred in admitting petitioner’s statements to investigators
during his second and third interviews.

(4)

Petitioner was denied his right to effective assistance of counsel because his
trial
counsel
failed
to
prepare
petitioner
to
testify.

(Doc. 1 at 2-15.)
Respondent contends that Ground 1 is without merit because the Missouri court’s
decision was reasonable; that Grounds 2 and 4 are procedurally barred because petitioner
did not raise them in the post-conviction relief appeal; and that Ground 3 is procedurally
barred and meritless. (Doc. 5 at 1-2.)

III. EXHAUSTION AND PROCEDURAL BAR
Congress requires that state prisoners exhaust their state law remedies for claims
made in federal habeas corpus petitions filed in district court under 28 U.S.C. § 2254.
-4 

See 28 U.S.C. § 2254(b)(1)(A). A state prisoner has not exhausted his remedies “if he
has the right under the law of the State to raise, by any available procedure, the question
presented.” 28 U.S.C. § 2254(c). As discussed above, petitioner filed a direct appeal, a
motion for post-conviction relief, and appealed the denial of his motion for postconviction relief.
Exhaustion in the sense that petitioner now has no remaining procedure for
bringing a claim to the state court does not, however, satisfy the federal statutory
requirement. Rather, a petitioner must have fairly presented the substance of each federal
ground to the trial and appellate courts. Anderson v. Harless, 459 U.S. 4, 6 (1982) (per
curiam). If he has not done so and has no remaining procedure for doing so because he
has defaulted on the legitimate requirements of the otherwise available procedures, any
such ground for federal habeas relief is barred from being considered by the federal
courts. Grass v. Reitz, 643 F.3d 579, 584 (8th Cir. 2011); King v. Kemna, 266 F.3d 816,
821 (8th Cir. 2001) (en banc); Sweet v. Delo, 125 F.3d 1144, 1149-50 (8th Cir. 1997)
(petitioner’s failure to present a claim on appeal from a circuit court ruling raises a
procedural bar to pursuing the claim in a habeas action in federal court). The doctrine of
procedural bar applies whether the default occurred at trial, on appeal, or during state
court collateral attack. See Murray v. Carrier, 477 U.S. 478, 490-92 (1986).
Petitioner presented Ground 1 to the Missouri Court of Appeals. (Doc. 5, Ex. C at
13.) Accordingly, Ground 1 is not procedurally barred.
Petitioner raised Grounds 2 and 4 in his amended post-conviction relief motion.
(Id.; Ex. G at 14.) However, on appeal, appellant failed to raise Grounds 2 and 4. (Id.;
Ex. H.) Accordingly, Grounds 2 and 4 are procedurally barred.
Petitioner failed to raise Ground 3 upon appeal of the trial court’s conviction. (Id.;
Ex. C.) Accordingly, Ground 3 is procedurally barred.
Nevertheless, petitioner may avoid procedural bar if he can demonstrate legally
sufficient cause for the default and actual prejudice resulting from it, or if he can
demonstrate that failure to review the claim would result in a fundamental miscarriage of

-5 

justice. Maples v. Thomas, 132 S. Ct. 912, 922 (2012); Coleman v. Thompson, 501 U.S.
722, 749-50 (1991). Petitioner alleges no grounds to avoid procedural bar.
However, Congress has authorized federal courts to consider the merits of
procedurally barred grounds and to dismiss them, if they conclude that the grounds are
without merit.

28 U.S.C. § 2254(b)(2).

The undersigned has considered all of

petitioner’s federal grounds on their merits.

IV. STANDARD OF REVIEW
The Antiterrorism and Effective Death Penalty Act (AEDPA) requires that habeas
relief may not be granted by a federal court on a claim that has been decided on the
merits by a state court unless that adjudication:
(1)

resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or

(2)

resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.

28 U.S.C. § 2254(d)(1)-(2).
A state court’s decision is contrary to clearly established federal law if it “arrives
at a conclusion opposite to that reached by [the] Court on a question of law or . . . decides
a case differently than [the] Court has on a set of materially indistinguishable facts.”
Thaler v. Haynes, 559 U.S. 43, 47 (2010) (per curiam) (citation omitted). This standard
is difficult to meet because habeas corpus “is a guard against extreme malfunctions in the
state criminal justice systems, not a substitute for ordinary error correction through
appeal.” Harrington v. Richter, 131 S. Ct. 770, 786 (2011) (citation omitted). A state
court’s decision involves an “unreasonable application” of clearly established federal law
if “the state court identifies the correct governing legal principle from [the] Court’s
decisions but unreasonably applies that principle to the facts of the prisoner’s case.”
Thaler, 559 U.S. at 47.
-6 

A state court’s factual findings are presumed to be correct.

28 U.S.C. §

2254(e)(1); Wood v. Allen, 558 U.S. 290, 293 (2010). Review under § 2254(d)(1) is
limited to the record before the state court that adjudicated the claim on the merits.
Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011). Clear and convincing evidence that
factual findings lack evidentiary support is required to grant habeas relief. 28 U.S.C. §
2254(e)(1); Wood, 558 U.S. at 293.
Where a petitioner’s claims were not adjudicated on the merits by a state court, the
pre-AEDPA standard for habeas review governs. Gingras v. Weber, 543 F.3d 1001, 1003
(8th Cir. 2008) (“Because [petitioner’s] apparently unexhausted claim was not
adjudicated on the merits, we likely should apply the pre-AEDPA standard of review,
rather than the deferential standard of 28 U.S.C. § 2254(d).”) (internal citations and
quotations omitted); Montes v. Trombley, 599 F.3d 490, 495 (6th Cir. 2010). Under the
pre-AEDPA standard, the habeas petitioner must show a “reasonable probability that the
error complained of affected the outcome of the trial or that the verdict likely would have
been different absent the now-challenged [defect].” Robinson v. Crist, 278 F.3d 862, at
865-66 (8th Cir. 2002).

V. DISCUSSION
A. Ground 1
In Ground 1, petitioner alleges there was insufficient evidence to support a finding
of guilt of murder in the first degree beyond a reasonable doubt. Specifically, he alleges
there was not enough evidence to support the requisite deliberation required for a
conviction of first degree murder. (Doc. 1 at 17-20.)
A challenger to a state criminal conviction brought under 28 U.S.C. § 2554 is
entitled to habeas relief if it can be established from the evidence on the record that no
rational trier of fact could have found proof beyond a reasonable doubt. Jackson v.
Virginia, 443 U.S. 307, 324 (1979).
Under Missouri law, one is guilty of first degree murder if he (1) knowingly (2)
causes the death of another person (3) after deliberation upon the matter. Mo. Rev. Stat. §
-7 

565.020. Deliberation is defined as “cool reflection for any length of time no matter how
brief.” Mo. Rev. Stat. § 565.002. “[I]t is necessary only that the killer had ample
opportunity to terminate the attack once it began.” State v. Knese, 985 S.W.2d 759, 769
(Mo. banc 1999) (quoting State v. Johnston, 957 S.W.2d 734, 747 (Mo. banc 1997)).
Deliberation may be inferred from the circumstances surrounding the murder.
State v. Davis, 32 S.W.3d 603, 610 (Mo. App. E.D. 2000). “Deliberation is properly
inferred where the defendant had ample opportunity to terminate the crime as well as
where the victim sustained multiple wounds or repeated blows.” Id. “For example, a
prolonged struggle may be evidence of deliberation.” Id.
The appellate court found there was sufficient evidence to prove petitioner’s
deliberation. (Doc. 5, Ex. E at 6.) The appellate court first discussed how petitioner
struck the victim several times knocking her unconscious, attempted to strangle the
victim, then decided to strangle her with the electrical cord to a hairdryer. (Id.) Further,
it concluded that petitioner had ample opportunity to terminate the crime, because he
testified that he made a choice about whether to walk away or to kill the victim. (Id.)
The appellate court then looked at petitioner’s attempts to conceal his involvement
in the crime by wiping off the hairdryer and paying alibi witnesses which can be
construed as evidence of deliberation. (Id.) Lastly, the court considered petitioner's
initial lies to the police when it concluded there was evidence of sufficient deliberation.
(Id.)

The appellate court concluded that there was ample evidence from which a

reasonable trier-of-fact might have found beyond a reasonable doubt that petitioner
deliberated on killing the victim. (Id., Ex. E at 7.)
The appellate court did not unreasonably apply federal law. First, the record
shows that petitioner, in his third interview, told police he punched the victim in the face
rendering her unconscious. (Doc. 5; Ex. A at 80.) Furthermore, in the same interview, he
stated he began choking the victim with his hands which proved ineffective. (Id.) Next,
petitioner testified he tied the electrical cord of a hairdryer in a knot around the victim’s
neck and strangled her for about two to four minutes until he believed her to be dead. (Id.

-8 

at 180.) Lastly, when asked at trial whether he had a choice whether to walk away or kill
the victim, petitioner replied in the affirmative. (Id. at 189.)
The combination of the blow to the head, the first attempted strangling with the
hands, and the second successful strangling with the electrical cord constitutes multiple
blows that indicate deliberation.

Also, the strangling took several minutes, or a

prolonged struggle which implies deliberation. Further, petitioner’s own response to the
query regarding his ability to walk away or kill the victim renders his argument meritless.
While petitioner testified regarding acting in the heat of the moment, this alone does not
meet his burden of showing that the state appellate court unreasonably applied the
applicable law in order to deny relief. A rational trier of fact could find, beyond a
reasonable doubt, that petitioner deliberated to the degree necessary to find him guilty of
first degree murder. Therefore, Ground 1 is without merit.

B. Ground 2
In Ground 2, petitioner argues he was denied his constitutional rights to due
process and to counsel throughout all critical stages of the proceedings.

More

specifically, he argues he lacked counsel during his arraignment. (Doc. 1 at 21.)
The Supreme Court has stated the Sixth Amendment right to counsel applies at all
critical stages of the proceedings. United States v. Wade, 388 U.S. 218, 227 (1967).
Under Missouri law, arraignment is not a critical stage of the proceedings. McClain v.
Swenson, 435 F.2d 327, 330 (8th Cir. 1990).
For due process violations, “[t]he petitioner must show that the alleged
improprieties were ‘so egregious that they fatally infected the proceedings and rendered
his entire trial fundamentally unfair.’” Hamilton v. Nix, 809 F.2d 463, 470 (8th Cir.
1987).

“To carry that burden, the petitioner must show that there is a reasonable

probability that the error complained of affected the outcome of the trial—i.e., that absent
the alleged impropriety the verdict probably would have been different.” Id.
The post-conviction motion court found that petitioner testified that he made no
incriminating statements during his arraignment. (Ex. G at 32.) Further, the post-9 

conviction motion court found petitioner further testified that nothing that occurred at his
arraignment was used against him at trial. (Id.) Thus, the court found no prejudice from
petitioner’s lack of counsel at his arraignment. (Id.)
The post-conviction motion court did not unreasonably apply federal law.
Petitioner testified that the state used no statements made during the arraignment against
petitioner at trial. Since nothing from the arraignment was used at trial, it cannot follow
that petitioner’s lack of counsel at the arraignment stage affected the verdict. Had
petitioner been accompanied by counsel at his arraignment, the verdict would have been
the same. Therefore, Ground 2 is without merit.

C. Ground 3
In Ground 3, petitioner argues the trial court erroneously admitted into evidence
his statements during his second and third interviews with police. Specifically, petitioner
argues his confession was coerced and involuntary due to promises of leniency or threats
of retribution by Officer Marshall Broughton. (Doc. 1 at 22.) This ground is without
merit.
“A statement is involuntary when it was extracted by threats, violence, or express
or implied promises sufficient to overbear the defendant's will and critically impair his
capacity for self-determination.” Simmons v. Bowersox, 235 F.3d 1124, 1132 (8th Cir.
2001). “In applying this test, we look at the totality of the circumstances surrounding the
interrogation, including law enforcement officials' conduct and the defendant's capacity
to resist any pressure.” Id. “Specifically, we consider factors such as detention length,
the repetitive and prolonged nature of questioning, and the accused's age.” Id. at 113233. “The statement to an accused that telling the truth ‘would be better for him’ does not
constitute an implied or express promise of leniency for the purpose of rendering his
confession involuntary.” Id. at 1133.
Here, nothing in the record shows any type of threats, violence, or promises
sufficient to overbear petitioner's will and critically impair his capacity for selfdetermination. Nothing in the record shows any indication of excessive interrogation,
- 10  

and petitioner testified that he told the whole story in the third interview. Next, nothing
in the record suggests any extended questioning or detention length. Petitioner was
detained following the second interview. Adding together the factors set out in Simmons,
the totality of the circumstances did not demonstrate that petitioner’s statements in the
third interview were involuntary. Moreover, Officer Broughton’s suggestion of possible
leniency or harsher punishment does not make unreasonable the state court's conclusion
that petitioner's statements during the interviews were voluntary.
Therefore, Ground 3 is without merit.

D. Ground 4
In Ground 4, petitioner argues he was denied the right to effective assistance of
counsel because his trial counsel failed to prepare him to testify. Specifically, he argues
his trial counsel did not allow him to review the videotaped statements given to
investigators, which allowed the prosecution to impeach his testimony. (Doc. 1 at 24.)
Petitioner argues that, had he reviewed the videotaped statements, he would not have
testified.
In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court determined
that the right to effective assistance of counsel arises from the Sixth and Fourteenth
Amendments. Under Strickland, a petitioner is entitled to federal habeas corpus relief
upon a showing that “counsel’s conduct so undermined the proper functioning of the
adversarial process that the trial cannot be relied on as having produced a just result.” Id.
at 686.
Petitioner must prove two elements to prevail on a claim of constitutionally
ineffective assistance of counsel.

First, petitioner must demonstrate that counsel’s

performance fell below an objective standard of reasonableness. Id. at 687–88. There is
a strong presumption that counsel has rendered constitutionally effective assistance. Id.
at 690; Blackmon v. White, 825 F.2d 1263, 1265 (8th Cir. 1987). Counsel’s strategic
choices made after thorough investigation are virtually unchallengeable, and decisions
following reasonable, but less thorough, investigation are to be upheld to the extent that
- 11  

they are supported by reasonable judgment. Strickland, 466 U.S. at 690–91. Second,
petitioner must demonstrate actual prejudice by counsel’s deficient performance. Id. at
687. “[A] court making the prejudice inquiry must ask if the defendant has met the
burden of showing that the decision reached would reasonably likely have been different
absent the errors.” Id. at 696.
The post-conviction motion court found this ground for relief without merit. The
decision was based on substantial evidence. Although petitioner testified he would have
not testified had he reviewed the tapes, he also testified he was aware the tapes would be
admitted into evidence and that the tapes contained several confessions including him
punching the victim, knocking the victim unconscious, choking the victim with his hands,
considering using a lamp cord for strangulation after failing with his hands, and
strangling the victim with a hair dryer cord for two to four minutes. (Doc. 5, Ex. G at 29.)
Petitioner saw the state's evidence before he took the stand in his defense and
nevertheless declined the opportunity to not testify. The post-conviction court's finding
was more than reasonable that petitioner “failed to show any prejudice resulting from
trial counsel not giving petitioner the opportunity to review his videotaped statements
before trial.” (Id.)
Petitioner fails to show any actual prejudice resulting from trial counsel failing to
let petitioner review the video tapes of the interviews. As stated by the post-conviction
motion court, the two taped interviews included several admissions that were included in
petitioner’s testimony.

(Id.)

Had petitioner not testified at trial, the prosecution’s

evidence in its case-in-chief would not have retrospectively been changed.

The

videotapes, which included crucial admissions, would have been properly admitted
regardless of whether petitioner testified at trial or not. If he had not testified, petitioner
still would have been convicted. Petitioner did not suffer any prejudice by Ground 4.
The state court did not unreasonably apply federal law. Ground 4 is without merit.

- 12  

VI. CONCLUSION
For the reasons stated above, the petition of Kenneth W. Beck for a writ of habeas
corpus is denied.
Petitioner has made no substantial showing of the denial of any constitutional
right. Therefore, the court does not issue a certificate of appealability. 28 U.S.C. §
2253(c)(2).
An appropriate Judgment Order is issued herewith.

/S/ David D. Noce
l
UNITED STATES MAGISTRATE JUDGE

Signed on June 6, 2014.

- 13