Deck v. Steele

Filing 76

MEMORANDUM AND ORDER (See Full Order) IT IS HEREBY ORDERED that, not later than November 6, 2015, petitioner Carman L. Deck shall file a supplemental Memorandum to the Court addressing Grounds 14, 15, and 24 of his Amended Petition for Writ of Habea s Corpus to the extent that some or all of the claims raised in these grounds may be procedurally barred from federal habeas review. IT IS FURTHER ORDERED that respondents shall have until December 4, 2015, to respond to Deck's supplemental Memorandum. Any Traverse shall be filed not later than December 28, 2015. Signed by District Judge Catherine D. Perry on 10/08/15. (EAB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
CARMAN L. DECK,

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) Case No. 4:12CV1527 CDP
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Petitioner,
v.
TROY STEELE, et al.,
Respondents.

MEMORANDUM AND ORDER
This matter is before the Court, sua sponte, upon review of the file.
Petitioner Carman L. Deck is currently on death row at the Potosi
Correctional Center in Mineral Point, Missouri, for the murders of James and
Zelma Long. Deck was convicted by a jury in the Circuit Court of Jefferson
County, Missouri, and was sentenced to death for each of the two murders. He is
also serving two concurrent life sentences for two counts of armed criminal action,
as well as consecutive sentences of thirty years imprisonment for one count of
robbery and fifteen years imprisonment for one count of burglary. Because Deck
is serving consecutive sentences, Missouri Attorney General Chris Koster is added
to this case as a proper party respondent.1

1

See Rule 2(b), Rules Governing Section 2254 Cases in the United States District Courts.

This action is before me now on Deck’s petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254. He raises numerous claims that his conviction and
death sentences were obtained in violation of his constitutional rights. The
Missouri Supreme Court addressed a number of these claims on their merits and,
as such, I will review them under the AEDPA in due course.
My review of Deck’s petition and the state court file shows that the Missouri
Supreme Court reviewed some of Deck’s instant claims only for plain error, noting
that they were not preserved for appellate review. As a federal habeas court, I
“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) (applying the rule set out in Hayes v.
Lockhart, 766 F.2d 1247 (8th Cir. 1985)).2 Instead, I may review the merits of the
claims only if Deck shows cause for the default and actual prejudice resulting from
the alleged constitutional violation, or that a fundamental miscarriage of justice
would occur if I were not to address the claims. Coleman v. Thompson, 501 U.S.
722, 750 (1991). In their response to the claims raised in Deck’s petition,
however, the respondents did not argue procedural default with respect to these
2

See also Pollard v. Delo, 28 F.3d 887, 889 (8th Cir. 1994) (state court’s consideration of merits
of claim “as a matter of grace” does not erase fact of procedural default from petitioner’s failure
to comply with state’s procedural rule); Hayes, 766 F.2d at 1252 (state court’s consideration of
substance of petitioner’s claim was merely in conjunction with plain error review and did not lift
bar).
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plain error claims but instead addressed them only on their merits, averring that I
should do so as well.
In addition, another of Deck’s claims appears to be defaulted in part because
he failed to properly raise the factual basis of the claim on post-conviction appeal.
As with the plain error claims, the respondents did not argue procedural default
with respect to this claim and indeed did not address the factual basis of the claim
that appears to be defaulted.
Not faced with a defense of procedural default to these claims, Deck did not
invoke any exceptions to the procedural bar in his Traverse with respect to these
claims.
I may not address sua sponte a defense of procedural default without
providing the parties fair notice and an opportunity to present their positions.
Dansby v. Hobbs, 766 F.3d 809, 824 (8th Cir. 2014). I will therefore provide an
opportunity for Deck to address the procedurally defaulted aspects of the following
claims, to which respondents shall have an opportunity to respond.
Ground 14
Mr. Deck was denied his rights to due process of the law, a trial
before a fair and impartial jury, and a fair and reliable sentencing
in violation of the Fifth, Sixth, Eighth and Fourteenth
Amendments to the United States Constitution when the
prosecution engaged in improper closing argument.
In this claim, Deck challenges the prosecutor’s comments in four areas of his
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closing argument: 1) the jurors’ accountability to the Longs’ grandchildren and
great-grandchildren; 2) improper personalization, urging the jurors to place
themselves in the victims’ shoes; 3) misstatement of the evidence, arguing that
Deck helped prisoners serving life sentences to escape; and 4) misstatement of the
evidence, arguing future dangerous and the jurors’ responsibility to prevent future
harm to guards and inmates. On direct appeal of Deck’s final penalty phase trial,
the Missouri Supreme Court found that the only basis of this claim preserved for
review was that the prosecutor engaged in improper personalization regarding the
jurors’ accountability to the Longs’ grandchildren and great-grandchildren. The
court determined all other bases for this claim to be unpreserved and only entitled
to plain error review. State v. Deck, 303 S.W.3d 527, 540-44 (Mo. banc 2010).
Ground 15
Mr. Deck was denied his rights to due process, a fair and
impartial jury, a fair sentencing trial, and freedom from cruel and
unusual punishment, in violation of the Fifth, Sixth, Eighth and
Fourteenth Amendments to the United States Constitution when
the trial court failed to read a mandatory instruction to the venire
panel before death qualification.
Deck raised this claim on direct appeal of his final penalty phase trial. The
Missouri Supreme Court reviewed the claim only for plain error, however,
inasmuch as the claim was not preserved for appeal. Deck, 303 S.W.3d at 545-47.

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Ground 24
Mr. Deck was denied effective assistance of counsel under the
Sixth Amendment to the United States Constitution and his right
to be free from cruel and unusual punishment under the Eighth
Amendment to the United States Constitution when, at his third
penalty phase trial, trial counsel failed to object to the
prosecutor’s closing argument, including statements that Mr.
Deck had “prior escapes” and had helped inmates serving life
sentences to escape.
In the body of this claim, Deck contends that trial counsel was ineffective
for failing to make the following objections to portions of the prosecutor’s closing
argument: 1) misstatement of the evidence regarding “all [of Deck’s] prior
escapes” and his helping prisoners serving life sentences to escape; and 2)
improper personalization in that the prosecutor urged the jurors to place themselves
in the victims’ shoes. Although Deck raised both factual bases of this claim in his
post-conviction motion (Resp. Exh. QQ at 78-83), he did not raise on postconviction appeal that part of his claim challenging counsel’s effectiveness for
failing to object to the prosecutor’s improper personalization argument. (See Resp.
Exh. VV at 128-32.) A claim must be presented at each step of the judicial process
in state court in order to avoid procedural default. Jolly v. Gammon, 28 F.3d 51,
53 (8th Cir. 1994). To be fairly presented, the claim in state court must contain the
same factual grounds for relief as asserted in the federal habeas petition. Picard v.
Connor, 404 U.S. 270 (1971); Abdullah v. Groose, 75 F.3d 408, 411 (8th Cir.
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1996).
Because it appears that the claims set out above may be subject to procedural
default, and the issue of procedural default regarding these claims has not been
addressed by the parties,
IT IS HEREBY ORDERED that, not later than November 6, 2015,
petitioner Carman L. Deck shall file a supplemental Memorandum to the Court
addressing Grounds 14, 15, and 24 of his Amended Petition for Writ of Habeas
Corpus to the extent that some or all of the claims raised in these grounds may be
procedurally barred from federal habeas review.
IT IS FURTHER ORDERED that respondents shall have until December
4, 2015, to respond to Deck’s supplemental Memorandum. Any Traverse shall be
filed not later than December 28, 2015.

____________________________________
CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE

Dated this 8th day of October, 2015.

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