Deck v. Steele

Filing 86

MEMORANDUM AND ORDER (See Full Order) IT IS HEREBY ORDERED that the amended petition of Carman L. Deck for writ of habeas corpus 30 is granted as to the sentence of death only, based on Claims 31 and 32(a) as discussed above, and denied in all o ther respects. Petitioners death penalty is vacated. Because the constitutional deficiencies cannot be cured and Deck cannot now be subjected to a penalty-phase trial that comports with due process, he must be sentenced to life in prison without the possibility of parole. An appropriate judgment granting the writ of habeas corpus is issued this same date. Signed by District Judge Catherine D. Perry on 4/13/17. (EAB)

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

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) Case No. 4:12 CV 1527 CDP
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Petitioner,
v.
TROY STEELE, et al.,
Respondents.

MEMORANDUM AND ORDER
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’ and fifteen years’ imprisonment
for one count of robbery and one count of burglary, respectively. Because Deck is
serving consecutive sentences, Missouri Attorney General Josh Hawley is added to
this case as a proper party respondent.1
This action is before me now on Deck’s request for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. He raises numerous claims that his conviction and

1

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

death sentences were obtained in violation of his constitutional rights. Because the
facts underlying Deck’s claims have been fully developed through the records
submitted to the Court and no further development was necessary, I did not hold an
evidentiary hearing on the claims. See Sweet v. Delo, 125 F.3d 1144, 1160 (8th
Cir. 1997).
I have carefully reviewed the extensive record in this case and the arguments
of the parties and find that Deck is entitled to habeas relief on his claim that he was
denied a fundamentally fair penalty trial because of delay not attributable to him,
and for counsel’s ineffectiveness in failing to pursue this meritorious claim before
the trial court. I will therefore grant his petition for writ of habeas corpus on these
bases. None of Deck’s other claims merit relief.
I. Factual Background
The following recitation of facts comes from the Missouri Supreme Court’s
opinion affirming Deck’s conviction on the first direct appeal in this case:
. . . In June 1996, Deck planned a burglary with his mother’s
boyfriend, Jim Boliek, to help Boliek obtain money for a trip to
Oklahoma. Deck targeted James and Zelma Long, the victims in this
case, because he had known the Longs’ grandson and had
accompanied him to the Longs’ home in DeSoto, Missouri, where the
grandson had stolen money from a safe. The original plan was to
break into the Longs’ home on a Sunday while the Longs were at
church. In preparation for the burglary, Deck and Boliek drove to
DeSoto several times to canvass the area.
On Monday, July 8, 1996, Boliek told Deck that he and Deck’s
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mother wanted to leave for Oklahoma on Friday, and he gave Deck
his .22 caliber High Standard automatic loading pistol. That Monday
evening, Deck and his sister, Tonia Cummings, drove in her car to
rural Jefferson County, near DeSoto, and parked on a back road,
waiting for nightfall. Around nine o’clock, Deck and Cummings
pulled into the Longs’ driveway.
Deck and Cummings knocked on the door and Zelma Long
answered. Deck asked for directions to Laguana Palma, whereupon
Mrs. Long invited them into the house. As she explained the
directions and as Mr. Long wrote them down, Deck walked toward
the front door and pulled the pistol from his waistband. He then
turned around and ordered the Longs to go lie face down on their bed,
and they complied without a struggle.
Next, Deck told Mr. Long to open the safe, but because he did
not know the combination, Mrs. Long opened it instead. She gave
Deck the papers and jewelry inside and then told Deck she had two
hundred dollars in her purse in the kitchen. Deck sent her into the
kitchen and she brought the money back to him. Mr. Long then told
Deck that a canister on top of the television contained money, so Deck
took the canister, as well. Hoping to avoid harm, Mr. Long even
offered to write a check.
Deck again ordered the Longs to lie on their stomachs on the
bed, with their faces to the side. For ten minutes or so, while the
Longs begged for their lives, Deck stood at the foot of the bed trying
to decide what to do. Cummings, who had been a lookout at the front
door, decided time was running short and ran out the door to the car.
Deck put the gun to Mr. Long’s head and fired twice into his temple,
just above his ear and just behind his forehead. Then Deck put the
gun to Mrs. Long’s head and shot her twice, once in the back of the
head and once above the ear. Both of the Longs died from the
gunshots.
After the shooting, Deck grabbed the money and left the house.
While fleeing in the car, Cummings complained of stomach pains, so
Deck took her to Jefferson Memorial Hospital, where she was
admitted. Deck gave her about two hundred fifty dollars of the
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Longs’ money and then drove back to St. Louis County. Based on a
tip from an informant earlier that same date, St. Louis County Police
Officer Vince Wood was dispatched to the apartment complex where
Deck and Cummings lived. Officer Wood confronted Deck late that
night after he observed him driving the car into the apartment parking
lot with the headlights turned off. During a search for weapons,
Officer Wood found a pistol concealed under the front seat of the car
and, then, placed Deck under arrest. Deck later gave a full account of
the murders in oral, written and audiotaped statements.
State v. Deck, 994 S.W.2d 527, 531-32 (Mo. banc 1999) (Deck I).
II. Procedural Background
The jury returned its guilty verdicts on February 20, 1998, and
recommended death for the two counts of murder. The trial court sentenced Deck
on April 27, 1998, in accordance with the jury’s recommendation. On June 1,
1999, the Missouri Supreme Court affirmed Deck’s conviction and sentence. Deck
I. Deck thereafter sought post-conviction relief under Missouri Supreme Court
Rule 29.15, which was denied after an evidentiary hearing. On appeal of the denial
of the motion, the Missouri Supreme Court found that Deck received ineffective
assistance of trial counsel in relation to the submission of jury instructions on
mitigation and remanded the matter for a new penalty-phase trial. Deck v. State,
68 S.W.3d 418 (Mo. banc 2002) (Deck II). The court concluded that, given the
particular facts of the case in which substantial mitigating evidence was offered,
there was a reasonable probability that the result of the proceeding would have
been different absent counsel’s errors. Id. at 431.
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A second penalty-phase trial began on April 29, 2003, and again resulted in
a jury’s recommendation of death for both murders. On June 30, 2003, the trial
court entered judgment consistent with the recommendation. The Missouri
Supreme Court affirmed the sentence on May 25, 2004. State v. Deck, 136 S.W.3d
481 (Mo. banc 2004). After granting certiorari, the United States Supreme Court
reversed this judgment, finding that Deck’s visible shackling during the second
penalty proceeding violated his constitutional right to due process. Deck v.
Missouri, 544 U.S. 622 (2005). The matter was remanded for further proceedings.
Upon remand, a third penalty-phase trial was held in September 2008, after
which a jury again recommended death for the two murders, and the trial court
entered judgment in accordance with the recommendation. This judgment was
affirmed by the Missouri Supreme Court on January 26, 2010. State v. Deck, 303
S.W.3d 527 (Mo. banc 2010) (Deck III). The United States Supreme Court denied
certiorari on June 28, 2010. Deck v. Missouri, 561 U.S. 1028 (2010). Deck’s
motion for post-conviction relief under Missouri Supreme Court Rule 29.15 was
denied after an evidentiary hearing. The Missouri Supreme Court affirmed the
denial of post-conviction relief on July 3, 2012. Deck v. State, 381 S.W.3d 339
(Mo. banc 2012) (Deck IV).
Deck initiated this proceeding for federal habeas corpus relief on August 27,
2012. Upon the appointment of counsel, Deck filed his petition for writ of habeas
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corpus on August 14, 2013. An amended petition was filed later that same date
and is presently before the Court for determination. The respondents have
responded to the claims raised in the petition, and Deck has filed a Traverse to that
response. The parties also filed supplemental briefs on procedural default.
III. Grounds Raised
In his amended petition for writ of habeas corpus, Deck raises thirty-two
grounds for relief:
Guilt Phase
1.

That he was denied his rights under the Fourth and Fifth
Amendments when his confession was admitted in evidence against
him;

2.

That he was denied his rights to due process, to a trial by a fair
and impartial jury, to reliable sentencing, and to be free from cruel
and unusual punishment under the Fifth, Sixth, Eighth, and Fourteenth
Amendments when he was denied a change of venue;

3.

That he was denied due process and the members of the venire
were denied equal protection in violation of the Fourteenth
Amendment when the trial court permitted the State to exercise a
peremptory strike against prospective juror 16, D.G.;

4.

That he was denied his rights to due process, to a fair and
impartial jury, to reliable sentencing, and to be free from cruel and
unusual punishment under the Fifth, Sixth, Eighth, and Fourteenth
Amendments when the trial court denied his challenge for cause of
prospective juror 20, S.A.;

5.

That he was denied effective assistance of trial counsel at his
guilt-phase trial and third penalty-phase trial when counsel failed to
investigate and present evidence from an expert on false confessions,
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in violation of the Sixth Amendment;
6.

That he was denied effective assistance of trial counsel and due
process when counsel failed to conduct an adequate investigation into
his innocence and present that evidence at trial, in violation of the
Sixth and Fourteenth Amendments;

7.

That he was denied effective assistance of trial counsel and due
process when counsel mentioned his prior convictions during voir
dire, in violation of the Sixth and Fourteenth Amendments;

8.

That he was denied effective assistance of trial counsel and due
process when counsel failed to object to State’s witness Shane Knoll’s
hearsay testimony about murders at the Long residence, in violation of
the Sixth and Fourteenth Amendments;

9.

That he was denied effective assistance of trial counsel, the
right to confront and cross-examine adverse witnesses, and due
process when counsel failed to object to State’s witness Shane Knoll’s
hearsay testimony about Jim Boliek’s alibi, in violation of the Sixth
and Fourteenth Amendments; and

10.

That he was denied effective assistance of appellate counsel in
violation of the Sixth Amendment when counsel failed to raise on
direct appeal a claim that the trial court erred in overruling his motion
to disqualify the prosecuting attorney’s office.

Penalty Phase2
11.

12.
2

That he was denied his right to due process in violation of the
Fifth and Fourteenth Amendments when the trial court overruled his
motion to impose two life sentences without possibility of parole and
imposed two death sentences, because his prior death sentences had
been held unconstitutional by the United States Supreme Court;
That he was denied his rights to due process, to trial by a
fair and impartial jury, and to be free from cruel and unusual

All penalty-phase claims relate to the third penalty-phase trial, which began in 2008 and
resulted in the death sentences that Deck challenges in this petition.
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punishment under the Fifth, Sixth, Eighth, and Fourteenth
Amendments when the court struck two prospective jurors because
they voiced reluctance to serve as foreperson but were otherwise
qualified;
13.

That he was denied his rights to a jury trial, to a presumption
of innocence, proof beyond a reasonable doubt, due process, reliable
sentencing, and freedom from cruel and unusual punishment in
violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments
when the trial court sentenced him to death for a crime that was never
pled in the indictment;

14.

That he was denied his rights to due process, to a trial before a
fair and impartial jury, and to a fair and reliable sentencing in
violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments
when the prosecution engaged in improper closing argument;

15.

That he 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 when the trial court failed to read a
mandatory instruction to the venire panel before death qualification;

16.

That he was denied his rights to due process, a fair jury trial,
and reliable sentencing under the Fifth, Sixth, Eighth, and Fourteenth
Amendments when the trial court overruled his objections to
instructions 8 and 13, which impermissibly shifted the burden of proof
to him regarding mitigating evidence;

17.

That he was denied proper proportionality review as required
by Missouri law, in violation of his right to due process under the
Fourteenth Amendment;

18.

That he was denied effective assistance of trial counsel and the
right to an impartial jury under the Sixth Amendment, and his right to
be free from cruel and unusual punishment under the Eighth
Amendment, when counsel failed to inquire of the prospective jurors
whether they were willing to meaningfully consider mitigation
evidence of childhood experience proffered by the defense;
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19.

That he was denied effective assistance of trial counsel under
the Sixth Amendment, and his right to be free from cruel and unusual
punishment under the Eighth Amendment, when counsel failed to
investigate and call numerous witnesses who were later identified by
post-conviction counsel;

20.

That he was denied effective assistance of trial counsel under
the Sixth Amendment when counsel failed to investigate and call
numerous witnesses and present extensive records that were not later
identified and presented by post-conviction counsel;

21.

That he was denied effective assistance of trial counsel under
the Sixth Amendment when counsel failed to develop and present
evidence from a neuropsychologist;

22.

That he was denied effective assistance of trial counsel and due
process under the Sixth and Fourteenth Amendments when counsel
failed to obtain a ruling from the court and request relief after
objections to the State’s improper opening statement;

23.

That he was denied effective assistance of counsel under the
Sixth Amendment when (a) trial counsel failed to object to the
prosecutor’s personal attacks upon him during cross-examination of
the defense expert, and (b) appellate counsel failed to raise the issue
for plain error on appeal;

24.

That he was denied effective assistance of trial counsel under
the Sixth Amendment, and his right to be free from cruel and unusual
punishment under the Eighth Amendment, when counsel failed to
object to the prosecutor’s closing argument when the prosecutor (a)
made statements that Deck had “prior escapes” and had helped
inmates serving life sentences to escape, and (b) engaged in improper
personalization;

25.

That he was denied effective assistance of trial counsel and his
right to a fair and impartial jury under the Sixth Amendment when
counsel failed to question jurors G.H. and R.E. regarding their jury
questionnaire responses;
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26.

That he was denied effective assistance of appellate counsel
and due process under the Sixth and Fourteenth Amendments when
counsel failed to raise a claim on appeal that the prosecutor made an
improper opening statement;

27.

That he was denied due process and the right to be free from
cruel and unusual punishment in violation of the Eighth and
Fourteenth Amendments when the trial court improperly responded to
a jury note during deliberations;

28.

That he was denied effective assistance of appellate counsel
under the Sixth Amendment when counsel failed to raise a claim on
appeal that the trial court improperly responded to a jury note during
deliberations;

29.

That he was denied effective assistance of trial counsel under
the Sixth Amendment when counsel failed to object to the trial court’s
failure to give a mandatory instruction before jury selection;

30.

That his right to be free from cruel and unusual punishment
under the Eighth Amendment will be violated if he is executed
according to the execution protocol promulgated by the Missouri
Department of Corrections on August 2, 2013;

31.

That he was denied due process and the right to be free from
cruel and unusual punishment under the Eighth and Fourteenth
Amendments because numerous errors not attributable to him resulted
in reversals and delays, which made it impossible to afford him a fair
penalty phase proceeding in 2008 and from now on; and

32.

That he was denied effective assistance of counsel under the
Sixth Amendment when (a) trial counsel failed to move for preclusion
of the death penalty given the length of time and the number of prior
proceedings that made it impossible for him to receive a fair trial, and
(b) appellate counsel failed to raise the issue on appeal.

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IV. Standard of Review
Federal habeas relief is available to a state prisoner “only on the ground that
he is in custody in violation of the Constitution or laws or treaties of the United
States.” 28 U.S.C. § 2254(a). See also Williams-Bey v. Trickey, 894 F.2d 314, 317
(8th Cir. 1990).
In order to obtain federal habeas review of a claim raised in a § 2254
petition, the petitioner must have first raised the federal constitutional dimensions
of the claim in State court in accordance with State procedural rules. Duncan v.
Henry, 513 U.S. 364 (1995) (per curiam); Beaulieu v. Minnesota, 583 F.3d 570,
573 (8th Cir. 2009) (quoting Gilmore v. Armontrout, 861 F.2d 1061, 1065 (8th Cir.
1988)). If the petitioner failed to properly present the claim in State court, and no
adequate non-futile remedy is currently available by which he may bring the claim
in that forum, the claim is deemed procedurally defaulted and cannot be reviewed
by the federal habeas court “unless the [petitioner] can demonstrate cause for the
default and actual prejudice as a result of the alleged violation of federal law, or
demonstrate that failure to consider the claim[] will result in a fundamental
miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991); see also
Martinez v. Ryan, 566 U.S. 1, 10-11 (2012).
Where the State court adjudicated a claim on the merits, federal habeas relief
can be granted on the claim only if the State court adjudication “resulted in a
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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,”
28 U.S.C. § 2254(d)(1); or “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)(2). See Williams v. Taylor, 529 U.S. 362, 379 (2000). The federal law
must be clearly established at the time petitioner’s State conviction became final,
and the source of doctrine for such law is limited to the United States Supreme
Court. Williams, 529 U.S. at 380-83.
A State court’s decision is “contrary to” clearly established Supreme Court
precedent when it is opposite to the Supreme Court’s conclusion on a question of
law or different than the Supreme Court’s conclusion on a set of materially
indistinguishable facts. Williams, 529 U.S. at 412-13; Carter v. Kemna, 255 F.3d
589, 591 (8th Cir. 2001). A State court’s decision is an “unreasonable application”
of Supreme Court precedent if it “identifies the correct governing legal principle
from [the Supreme Court’s] decisions but unreasonably applies that principle to the
facts of the prisoner’s case.” Williams, 529 U.S. at 413. Merely erroneous or
incorrect application of clearly established federal law does not suffice to support a
grant of habeas relief. Instead, the State court’s application of the law must be
objectively unreasonable. Id. at 409-11; Jackson v. Norris, 651 F.3d 923, 925 (8th
Cir. 2011). Finally, when reviewing whether a State court decision involves an
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“unreasonable determination of the facts” in light of the evidence presented in the
State court proceedings, State court findings of basic, primary, or historical facts
are presumed correct unless the petitioner rebuts the presumption with clear and
convincing evidence. 28 U.S.C. § 2254(e)(1); Rice v. Collins, 546 U.S. 333, 33839 (2006); Collier v. Norris, 485 F.3d 415, 423 (8th Cir. 2007). Erroneous
findings of fact do not ipso facto ensure the grant of habeas relief, however.
Instead, the determination of these facts must be unreasonable in light of the
evidence of record. Collier, 485 F.3d at 423; Weaver v. Bowersox, 241 F.3d 1024,
1030 (8th Cir. 2001).
The federal court is “bound by the AEDPA [Antiterrorism and Effective
Death Penalty Act] to exercise only limited and deferential review of underlying
State court decisions.” Lomholt v. Iowa, 327 F.3d 748, 751 (8th Cir. 2003). To
obtain habeas relief from a federal court, the petitioner must show that the
challenged State court ruling “rested on ‘an error well understood and
comprehended in existing law beyond any possibility for fairminded
disagreement.’” Metrish v. Lancaster, 133 S. Ct. 1781, 1786-87 (2013) (quoting
Harrington v. Richter, 562 U.S. 86, 102-03 (2011)). This standard is difficult to
meet. Id. at 1786.
In circumstances where the State court does not address a federal claim that
was fairly presented to that court, the court’s lack of analysis “does not mean that
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[the petitioner] is necessarily entitled to habeas relief[.]” Huss v. Graves, 252 F.3d
952, 956 (8th Cir. 2001). Relief may be granted only if the decision of the State
court is “substantially different” from what the decision would have been if that
court had used the appropriate legal standard as established by the United States
Supreme Court. Id. (quoting Williams, 529 U.S. at 405). Accordingly, in those
circumstances, I must apply established Supreme Court precedent to the facts of
this case to determine whether Deck is entitled to relief on the claim. Id.
Deck’s claims in this habeas petition must be addressed under a number of
complex legal standards. He raises claims that are not cognizable in federal habeas
proceedings; he raises claims that were defaulted at varying stages of the State
court proceedings; and he raises claims that were determined on the merits in State
court and therefore must be examined by me on the merits. I will address Deck’s
claims according to the legal standard under which they must be determined.
V. Non-Cognizable Claims
A.

Ground 1 – Admission of Confession
In his first ground for relief, Deck claims that his confession was obtained as

a result of his unlawful arrest and subsequent search and should have been
suppressed as fruit of the poisonous tree. Deck claims that the initial constitutional
violation that led to his confession was his unlawful arrest in violation of the

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Fourth Amendment.3
Verbal statements obtained as a result of a Fourth Amendment violation are
subject to the exclusionary rule. United States v. Yousif, 308 F.3d 820, 832 (8th
Cir. 2002) (citing Wong Sun v. United States, 371 U.S. 471, 485 (1963)); see also
Brown v. Illinois, 422 U.S. 590 (1975). However, a State prisoner is precluded
from asserting a Fourth Amendment claim as a basis for federal habeas relief
unless he can demonstrate that the State courts did not afford him a full and fair
opportunity to litigate the claim. Stone v. Powell, 428 U.S. 465, 494 (1976);
Palmer v. Clarke, 408 F.3d 423, 437 (8th Cir. 2005); Willett v. Lockhart, 37 F.3d
1265, 1270 (8th Cir. 1994) (en banc).
The Eighth Circuit has set forth a two-part test to determine whether a
habeas petitioner has had an opportunity for a full and fair litigation of a Fourth
Amendment claim in State courts. Willett, 37 F.3d at 1273. A Fourth Amendment
claim is barred from federal habeas review under Stone v. Powell unless: 1) the
State provided no procedure by which the petitioner could raise his Fourth
Amendment claim, or 2) the petitioner was foreclosed from using that procedure
because of an unconscionable breakdown in the system. Willett, 37 F.3d at 1273.
The first prong of the Willett test is satisfied here in that the State of
3

Although Deck cites to the Fifth Amendment in this claim, he does not allege any impropriety
in the interrogation that gave rise to the confession, which would make his claim cognizable
under the Fifth Amendment. Cf. New York v. Harris, 495 U.S 14, 20 (1990).
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Missouri has a procedure by which Deck could raise his Fourth Amendment claim.
Willett, 37 F.3d at 1272 (Eighth Circuit unaware of any State that does not have
such a procedure). As to the second prong, there is no evidence before me
showing that an unconscionable breakdown in the system prevented Deck from
raising the claim. Indeed, Deck himself avers that he moved for the trial court to
suppress his confession on the basis urged here, that the trial court considered
evidence on the motion, and that the court’s denial of the motion was reviewed by
the Missouri Supreme Court. (Amd. Petn., ECF#30 at 25.) See also Deck I, 994
S.W.2d at 534-36. Deck renewed his motion to suppress at the third penalty-phase
trial (Resp. Exh. LL at 545), and the Missouri Supreme Court again reviewed the
trial court’s denial of the motion. Deck III, 303 S.W.3d at 544-45. Accordingly,
the State provided Deck the opportunity for full and fair litigation of his Fourth
Amendment claim, and he availed himself of this opportunity to conclusion.
Deck does not argue that the State denied him an opportunity to fully and
fairly litigate his Fourth Amendment claim. Instead, he contends that Stone v.
Powell should not apply in a death penalty case. Deck cites no legal authority to
support this position, and I am aware of none.
Because the State afforded Deck a full and fair opportunity to litigate his
Fourth Amendment claim, and indeed he took full advantage of this opportunity,
the claim raised in Ground 1 of the petition is not cognizable in this habeas
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proceeding and will be denied.
B.

Ground 30 – Lethal Injection Protocol
In Ground 30, Deck claims that his Eighth Amendment right to be free from

cruel and unusual punishment would be violated if he is executed according to the
“current execution protocol promulgated by the Missouri Department of
Corrections on August 2, 2013,” arguing that use of the drug propofol at the
dosage prescribed in the protocol is known to cause pain. (Amd. Petn., ECF #30
at 101.) Deck admits in his Traverse that the State no longer uses the protocol
(Traverse, ECF #67 at 124) but argues that the current protocol also violates the
Eighth Amendment.
Because this claim does not challenge the validity of Deck’s conviction or
the duration of his sentence but instead challenges the lethal injection procedure
promulgated by the State of Missouri, the claim is not cognizable in this habeas
corpus action. Instead, “a method-of-execution claim must be brought under [42
U.S.C.] § 1983 because such a claim does not attack the validity of the prisoner’s
conviction or death sentence.” Glossip v. Gross, 135 S. Ct. 2726, 2738 (2015)
(citing Hill v. McDonough, 547 U.S. 573, 579-80 (2006)).
The claim raised in Ground 30 challenging Missouri’s lethal injection
protocol is not cognizable in this habeas proceeding and will be denied.

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VI. Procedurally Defaulted Claims
A.

Plain Error Claims
Deck raised a number of claims on appeal to the Missouri Supreme Court

that were not preserved for appellate review. Citing Missouri law, the supreme
court reviewed these claims for plain error and found none. Deck raises some of
these claims in Grounds 14 and 15 of this petition. Because they were not
preserved for appellate review in the State court and were analyzed by the Missouri
Supreme Court for plain error, they are subject to procedural default analysis.
Clark v. Bertsch, 780 F.3d 873 (8th Cir. 2015) (applying the rule set out in Hayes
v. Lockhart, 766 F.2d 1247 (8th Cir. 1985)).
I invited the parties, including Deck, to address the extent to which some
claims may be defaulted under the holdings of Clark and Hayes. In response,
Deck argues that there is no procedural bar here – and thus no need for cause and
prejudice analysis – because 1) the Eighth Circuit wrongly decided Clark, 2)
United States Supreme Court decisions have since superseded the Eighth Circuit’s
Hayes decision, and 3) Deck III’s substantive discussion of Deck’s unpreserved
claims permits me to address the substance of the claims. I reject each of these
arguments.
First, Deck’s argument that Clark was wrongly decided is unavailing. While
Deck contends that two Eighth Circuit cases decided before Hayes permit federal
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habeas relief on claims subject to only plain error review, Deck misapprehends the
decisions in these cases. One cannot argue with Deck’s position that, as stated in
Dietz v. Solem, 640 F.2d 126 (8th Cir. 1991), habeas relief is not barred by a
petitioner’s mere failure to preserve a claim for review. Instead, as applied in
Dietz and reinforced in Clark, habeas relief may be available if the petitioner
shows cause and prejudice for what is otherwise a procedurally defaulted claim. In
Brouillette v. Wood, 636 F.2d 215 (8th Cir. 1980), the other case Deck relies on,
the issue there was found by the Eighth Circuit to have been properly submitted to
the State supreme court. The Eighth Circuit therefore did not address the plain
error/procedural default issue we face here. Accordingly, I do not accept Deck’s
argument that the Eighth Circuit’s pre-Hayes decisions of Dietz and Brouillette
stand for the proposition that there is no procedural default when a Missouri court
addresses a claim for plain error.
Nor do the United States Supreme Court’s decisions of Harris v. Reed,4 Ylst
v. Nunnemaker,5 and Coleman v. Thompson,6 change the effect of Hayes. Harris
held that procedural default does not bar federal habeas relief unless the last State
court to address the claim clearly and expressly states that its decision rests on a
State procedural bar. Ylst held that a federal habeas court must look through an

4

489 U.S. 255 (1989).
501 U.S. 797 (1991).
6
501 U.S. 722 (1991).
5

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unexplained State court order to the last reasoned decision to determine the basis
for the decision. And Coleman held that the presumption that a State court relied
on federal law in making its judgment applies only when the federal court has good
reason to question whether there is an independent and adequate state ground for
the decision. None of these circumstances apply here. The claims raised in
Grounds 14 and 15 were raised on direct appeal for plain error review, and the
Missouri Supreme Court clearly and expressly stated in all relevant respects that it
was reviewing Deck’s unpreserved claims for plain error. Deck III is not an
unexplained order, nor does it leave me questioning the basis of its decision.
Finally, Deck III’s substantive discussion of Deck’s unpreserved claims does
not itself lift the procedural bar given that the court’s discussion was merely in
conjunction with its plain error review. See Hayes, 766 F.2d at 1252; 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 that claim is defaulted
because of petitioner’s failure to comply with State’s procedural rule).
Accordingly, contrary to Deck’s assertion, the claims raised in this petition
that were addressed by the Missouri Supreme Court only for plain error are subject
to procedural default analysis.
1.

Ground 14 – Prosecutorial Misconduct, Improper Closing Argument

In his fourteenth ground for relief, Deck argues that the prosecutor engaged
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in improper closing argument at the third penalty-phase trial when he 1) appealed
to the jurors to return the death penalty based on their accountability to the Longs’
grandchildren and great-grandchildren; 2) improperly personalized the argument
by urging the jurors to place themselves in the victims’ shoes; 3) misstated the
evidence by analogizing the jurors to sheepdogs, the victims and society to sheep,
and Deck to a wolf, and that the jurors would be responsible for Deck’s future
victims – including prison guards and other inmates – if he were not sentenced to
death; and 4) misstated the evidence by arguing that Deck had had prior escapes
from prison and had helped prisoners serving life sentences to escape. Deck
acknowledges that only the accountability claim was preserved and addressed by
the Missouri Supreme Court on appeal, and that the court “did not find that the trial
court plainly erred in allowing [the other arguments].” (See Amd. Petn., ECF #30
at 57.)
As discussed above, I am bound by the Eighth Circuit’s holding in Clark
that a federal habeas court cannot reach an unpreserved and procedurally defaulted
claim merely because a reviewing State court analyzed that claim for plain error.
Clark, 780 F.3d at 874. Instead, I may review the merits of the claim 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 claim. Coleman, 501 U.S. at 750. Here, all but Deck’s
- 21 -

first claim of improper closing argument are procedurally defaulted given that they
were unpreserved under Missouri law and were reviewed by the State court only
for plain error. Deck asserts no cause for or prejudice resulting from this
procedural default. Nor does he claim that a fundamental miscarriage of justice
would occur if I were not to address the merits of the claims.
Accordingly, to the extent Deck claims in Ground 14 that the prosecutor
improperly urged the jurors to place themselves in the victims’ shoes, argued that
the jurors would be responsible for Deck’s future victims if he were not sentenced
to death, and stated that Deck had had prior escapes from prison and had helped
prisoners serving life sentences to escape, the claims are procedurally barred from
federal habeas review and will be denied. Deck’s claim that the prosecutor
improperly argued that the jurors were accountable to the victims’ family is the
only part of Ground 14 that is not procedurally barred, and it is addressed on its
merits later in this opinion.
2.

Ground 15 – Jury Instruction Error

In Ground 15, Deck claims that the trial court erred when it failed to read a
mandatory instruction under the Missouri Approved Instructions before death
qualification of the venire panel. Although Deck raised this claim on direct appeal
of his final penalty-phase trial, the Missouri Supreme Court reviewed the claim
only for plain error because it was not preserved for appeal. Deck III, 303 S.W.3d
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at 545-47. Deck acknowledges this circumstance. (See Amd. Petn., ECF #30 at
59.) Given the unpreserved and procedurally defaulted nature of the claim, Clark,
780 F.3d at 874, I may review its merits 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 claim.
Coleman, 501 U.S. at 750. Deck asserts no cause for or prejudice resulting from
this procedural default. Nor does he claim that a fundamental miscarriage of
justice would result if I were not to address the merits of the claim.
Accordingly, the claim raised in Ground 15 of the petition is procedurally
barred from federal habeas review and will be denied.
B.

Ineffective Assistance of Counsel Claims Subject to Martinez Analysis
In Martinez v. Ryan, 566 U.S. 1 (2012), the Supreme Court held that “a

procedural default will not bar a federal habeas court from hearing a substantial
claim of ineffective assistance at trial if, in the initial-review collateral proceeding,
there was no counsel or counsel in that proceeding was ineffective.” Id. at 17.
Accordingly, under Martinez, a petitioner may claim ineffective assistance of postconviction counsel to establish “cause” for procedural default of a habeas claim of
ineffective assistance of trial counsel. To establish cause in this manner, the
petitioner must show that post-conviction counsel’s assistance was ineffective
under the standards of Strickland v. Washington, 466 U.S. 668 (1984), and further
- 23 -

demonstrate that his underlying claim of ineffective assistance of trial counsel is a
“substantial” one, that is, that the claim has some merit. Martinez, 566 U.S. at 14.
If the State demonstrates that the underlying claim of ineffective assistance of trial
counsel is unsubstantial or non-meritorious, the petitioner cannot establish that
post-conviction counsel was ineffective and thus cannot show cause for default of
the underlying claim. Id. at 15-16. Likewise, if post-conviction counsel did not
perform below constitutional standards, no cause is shown for default. Id.
In this habeas petition, Deck raises numerous claims of ineffective assistance
of trial counsel that were not raised in any post-conviction proceeding and thus are
subject to procedural default. For each claim, Deck invokes Martinez and argues
that ineffective assistance of post-conviction counsel caused his default. Although
respondents contend that this “new rule” of Martinez may not be applied
retroactively under Teague v. Lane, 489 U.S. 288 (1989), I note that when Deck
filed this habeas action in August 2012, Martinez permitted habeas review of such
claims. I will therefore apply Martinez in this case. See Buck v. Davis, 137 S. Ct.
759, 779-80 (2017). However, because the following defaulted claims of trial
counsel error are not substantial, post-conviction counsel did not render ineffective
assistance by failing to raise the claims.

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GUILT PHASE
1.

Ground 5 – Expert on False Confessions

In his fifth ground for relief, Deck claims that trial counsel was ineffective
for failing to investigate and present evidence from an expert on false confessions
at both the guilt-phase trial and third penalty-phase trial. Deck contends that such
an expert would have aided defense counsel in trial preparation and would have
provided trial testimony aiding the jury in assessing factors relevant to the
truthfulness of confessions.
The Sixth Amendment guarantees a criminal defendant the right to effective
assistance of counsel. Strickland, 466 U.S. at 686. To prevail on a claim of
ineffective assistance of counsel, a petitioner must show that 1) his counsel’s
performance was deficient, and 2) the deficient performance prejudiced his
defense. Id. at 687. In evaluating counsel’s performance, the basic inquiry is
“whether counsel’s assistance was reasonable considering all the circumstances.”
Id. at 688. The petitioner bears a heavy burden in overcoming “a strong
presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance.” Id. at 689. To establish prejudice, the petitioner “must
show that there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the outcome.”
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Strickland, 466 U.S. at 694.
A presumption exists that counsel’s conduct “might be considered sound
trial strategy.” Strickland, 466 U.S. at 688. However, “the strength of the
presumption turns on the adequacy of counsel’s investigation[.]” White v. Roper,
416 F.3d 728, 732 (8th Cir. 2005). “[S]trategic choices made after thorough
investigation of law and facts relevant to plausible options are virtually
unchallengeable; and strategic choices made after less than complete investigation
are reasonable precisely to the extent that reasonable professional judgments
support the limitations on investigation.” Strickland, 466 U.S. at 690-91. “In other
words, counsel has a duty to make reasonable investigations or to make a
reasonable decision that makes particular investigations unnecessary. . . . [A]
particular decision not to investigate must be directly assessed for reasonableness
in all the circumstances, applying a heavy measure of deference to counsel’s
judgments.” Id. at 691.
Although Deck raised claims of ineffective assistance of trial counsel in
State court, he did not pursue a claim on the theory presented here, that is, that
counsel was ineffective for failing to investigate and call an expert witness
regarding false confessions. For the following reasons, post-conviction counsel
was not ineffective in their failure to bring the claim in post-conviction
proceedings.
- 26 -

Generally, in Missouri, expert testimony is not admissible if it relates to
witness credibility because it invades the province of the jury. State v. Wright, 247
S.W.3d 161, 166 (Mo. Ct. App. 2008) (citing State v. Link, 25 S.W.3d 136, 143
(Mo. banc 2000)). Testimony from experts relating to factors that lead people to
make false confessions and opinions that certain of those factors are present in the
circumstances of the case “clearly . . . invade the province of the jury” because
they relate to the credibility of a defendant’s confession. Id. at 168. “‘To allow
such expert testimony invades the jury’s proper realm.’” Id. (quoting State v.
Davis, 32 S.W.3d 603, 609 (Mo. Ct. App. 2000)). Because the trial court most
likely would have concluded that testimony from an expert on false confessions
would be inadmissible, it cannot be said that trial counsel’s conduct in failing to
pursue this strategy in Deck’s case was deficient. See Dearstyne v. Mazzuca, 48 F.
Supp. 3d 222, 307-08 (N.D.N.Y. 2011).
Nor can it be said that trial counsel rendered ineffective assistance by failing
to secure such an expert to aid them in pursuing motions to suppress, strategizing
for jury selection, and planning the examination of witnesses. A review of the
record shows counsel to have ably and thoroughly litigated the issue of Deck’s
confession, as demonstrated by the pretrial suppression motion and hearing,7

7

Resp. Exh. C at 153-71, 190-98.
- 27 -

counsel’s opening statement,8 vigorous and sustained cross-examination designed
to call into question the events leading to Deck’s confession and the interrogation
itself,9 as well as closing argument to the jury regarding the credibility of the
confession.10 See Dearstyne, 48 F. Supp. 3d at 308; Davis, 32 S.W.3d at 609. In
addition, the jury was instructed concerning Deck’s statements, including what
factors to consider in determining what weight, if any, to give the statements.11
Other than Deck’s speculation that a confessions expert would have provided
additional assistance to counsel, nothing before the Court shows a reasonable
probability that such additional assistance would have affected the outcome of the
case, especially in light of counsel’s conduct in ably pursuing a false confessions
defense.
Nor can Deck show that this evidence would have been admitted at the third
penalty-phase trial. Deck’s guilt was no longer at issue and could not be
relitigated. Given that testimony from a confessions expert would likely not have
been admitted at the third penalty-phase trial because of its lack of relevance,
penalty-phase counsel cannot be said to be ineffective for failing to secure such a
witness.
Accordingly, given the likelihood that the trial court would have disallowed
8

Resp. Exh. E at 551-53.
Resp. Exh. F at 770-89.
10
Resp. Exh. G at 826-30.
11
Resp. Exh. B at 207.
9

- 28 -

expert testimony on false confessions, and Deck’s failure to show a reasonable
probability that assistance from such an expert would have changed the outcome of
the proceedings, it cannot be said that Deck’s underlying claim of ineffective
assistance of trial counsel was so substantial that post-conviction counsel was
ineffective for failing to raise the claim during post-conviction proceedings. Deck
has thus failed to show adequate cause to excuse his default of the claim raised in
Ground 5 of the instant petition. Martinez, 566 U.S. at 15-16. Deck’s failure to
show cause for his procedural default makes a determination of prejudice
unnecessary. Cagle v. Norris, 474 F.3d 1090, 1099 (8th Cir. 2007).
Nor has Deck shown that a fundamental miscarriage of justice would result
if I were not to address the merits of his underlying claim. To invoke the
“fundamental miscarriage of justice” exception to showing cause and prejudice for
a defaulted claim, Deck must “present new evidence that affirmatively
demonstrates that he is innocent of the crime for which he was convicted.” Abdi v.
Hatch, 450 F.3d 334, 338 (8th Cir. 2006); see also Brownlow v. Groose, 66 F.3d
997, 999 (8th Cir. 1995). “[A] claim of ‘actual innocence’ is . . . a gateway
through which a habeas petitioner must pass to have his otherwise barred
constitutional claim considered on the merits.” Mansfield v. Dormire, 202 F.3d
1018, 1024 (8th Cir. 2000). To successfully pursue a claim of actual innocence,
Deck must show 1) new reliable evidence not available at trial; and 2) that, more
- 29 -

likely than not, no reasonable juror would have convicted him in light of the new
evidence. Amrine v. Bowersox, 238 F.3d 1023, 1029 (8th Cir. 2001); see also Kidd
v. Norman, 651 F.3d 947 (8th Cir. 2011); Storey v. Roper, 603 F.3d 507, 524 (8th
Cir. 2010). Here, Deck presents no new reliable evidence of his actual innocence.
Schlup v. Delo, 513 U.S. 298, 316 (1995) (“Without any new evidence of
innocence, even the existence of a concededly meritorious constitutional violation
is not in itself sufficient to establish a miscarriage of justice that would allow a
habeas court to reach the merits of a barred claim.”); Weeks v. Bowersox, 119 F.3d
1342, 1352-53 (8th Cir. 1997) (en banc) (bare, conclusory assertion that a
petitioner is actually innocent insufficient to excuse a procedural default). Deck
has failed to present any evidence of actual innocence. He has thus failed to show
that a constitutional violation has probably resulted in the conviction of one who is
actually innocent. See Weeks, 119 F.3d at 1352-53.
Ground 5 is therefore procedurally barred from federal habeas review and
will be denied.
2.

Ground 6 – Failure to Conduct Adequate Investigation into Innocence

In his sixth ground for relief, Deck claims that trial counsel was ineffective
for failing to investigate and present at trial evidence regarding his innocence.
Specifically, Deck contends that counsel should have investigated the following
witnesses, averring that they would have provided testimony supporting his
- 30 -

innocence and theory of false confession: 1) Elaine Gunther, 2) James Boliek, 3)
Kathy Brewster, 4) Michael Deck, 5) William Boliek, 6) Tonia Cummings, 7)
Sheila Francis, 8) Unknown Jefferson Memorial Hospital Staff, and 9) himself –
Carman Deck, Jr. Deck also contends that counsel should have pursued DNA
testing of physical evidence seized from the victims’ home and from his car to
determine whether the evidence was connected to the victims.
“[A] reasoned decision not to call a witness is a virtually unchallengeable
decision of trial strategy.” Rodela-Aguilar v. United States, 596 F.3d 457, 464 (8th
Cir. 2010) (internal citation and quotation marks omitted). However, failing to
interview witnesses or discover mitigating evidence may be a basis for finding
counsel ineffective within the meaning of the Sixth Amendment right to counsel if
the petitioner can “make a substantial showing that, but for counsel’s failure to
interview . . . the witnesses in question, there is a reasonable probability that the
result of his trial would have been different.” Kramer v. Kemna, 21 F.3d 305, 309
(8th Cir. 1994). For the following reasons, Deck has not made the substantial
showing required of him in this case.
There is no per se rule that failure to interview witnesses constitutes
ineffective assistance because such claims turn on their individual facts. Sanders
v. Trickey, 875 F.2d 205, 209 (8th Cir. 1989). To succeed on a claim that counsel
was ineffective for failing to investigate, Deck may not base his claim on
- 31 -

conclusory allegations but rather must allege what information his attorney failed
to discover. See id. at 210. A habeas petitioner who offers only speculation that he
was prejudiced by counsel’s failure to investigate fails to show ineffective
assistance of counsel. Id.; see also Redeemer v. State, 979 S.W.2d 565, 569 (Mo.
Ct. App. 1998).
James Boliek
A review of the trial transcript in its entirety shows that Deck’s strategy at
trial was to implicate James Boliek in the murders of James and Zelda Long.
Indeed, Deck adduced evidence consistent with this theory and argued this theory
to the jury. Evidence was also adduced, however, that the criminal investigation
into James Boliek’s involvement in the murders did not proceed beyond its initial
stages because of alibi evidence considered by the investigators to be sufficient to
remove suspicion from Boliek. Deck now claims that trial counsel was ineffective
for failing to investigate and call Boliek to testify at trial regarding Deck’s
innocence.
As an initial matter, I find it unlikely that Boliek would have testified to
Deck’s innocence inasmuch as, in order to do so consistent with Deck’s theory of
defense, he would have had to essentially confess to his own involvement in the
crime. Nevertheless, Deck has failed to present any independent evidence as to
what Boliek would have allegedly said had he been interviewed or called to testify.
- 32 -

He has provided no affidavits or any other information that would support his
claim that Boliek would have testified to his innocence. Instead, Deck provides
only speculation about what Boliek’s potential testimony would have been.
Recognizing the deferential standard when reviewing the conduct of counsel, I
decline to find prejudice in this situation when there is no evidence other than
speculation to support the finding. See Sanders, 875 F.2d at 210.
Because Deck cannot satisfy both prongs of the Strickland analysis, he
cannot succeed on his claim of ineffective assistance of trial counsel for failing to
investigate and call James Boliek to testify at trial. Post-conviction counsel was
not ineffective for failing to raise this unsubstantial claim on post-conviction
review.
Elaine Gunther and William Boliek
Deck avers that Elaine Gunther (James Boliek’s neighbor) and William
Boliek (James Boliek’s father) had information relating to James Boliek’s alibi and
would have testified regarding Deck’s innocence. As with James Boliek, however,
Deck offers only general speculation that these individuals would have provided
information and would have testified as to his innocence. Deck does not indicate
what information would have been obtained, the content of any potential
testimony, or any independent support for his claim that investigation of these
individuals would have had an effect on the outcome of his case. Because Deck
- 33 -

offers nothing more than speculation, he has failed to show that he was prejudiced
by counsel’s failure to further investigate these potential witnesses and thus cannot
show ineffective assistance of trial counsel with respect to Ms. Gunther and
William Boliek. See Saunders v. United States, 236 F.3d 950, 952-53 (8th Cir.
2001) (with lack of specificity as to content of proposed testimony, petitioner
cannot show how outcome of trial would have been different); Sanders, 875 F.2d
at 210. See also Redeemer, 979 S.W.2d at 569.
Post-conviction counsel was not ineffective for failing to pursue this
unsubstantial claim on post-conviction review.
Nurse Francis and Unknown Staff of Jefferson Memorial Hospital
Deck avers that investigation of these individuals would have shown that he
arrived at the hospital with his sister before the time the murders were committed
and left after they were committed. Although Deck contends that these persons
would have testified to such matters at trial, he has provided no affidavits or any
other information that would support this claim. Deck provides only speculation.
Nevertheless, evidence adduced before the trial court showed that Deck
arrived at the Long residence on July 8, 1996, shortly after 9:00 p.m. and was there
for ten to fifteen minutes. (Resp. Exh. F at 763-64; Exh. M at 336.) Additional
evidence before the trial court showed Jefferson Memorial Hospital to be located
about six to eight miles from the Long residence and that this distance could be
- 34 -

traveled in ten minutes. (Resp. Exh. F at 770.) As such, Nurse Francis’s and the
hospital staff’s proposed testimony that Deck was present at the hospital at 10:10
p.m. (see Resp. Exh. L at 169) would have done nothing to support Deck’s claim
that he was present at the hospital when the murders occurred. Deck has thus
failed to show a reasonable probability that the outcome of his trial would have
been different had such testimony been adduced.
Because Deck cannot show that counsel’s failure to investigate and/or call
Nurse Francis and the hospital staff to testify at trial prejudiced his defense, he
cannot demonstrate that counsel was ineffective by this failure. Post-conviction
counsel cannot be ineffective for failing to pursue a non-meritorious claim.
Michael Deck
Deck avers that his brother, Michael Deck, had information regarding
Boliek’s alibi and would have testified to Deck’s innocence. No independent
information has been presented to this Court to support these speculative
averments. On this basis alone, Deck’s claim of ineffective assistance of trial
counsel with respect to counsel’s conduct involving Michael Deck fails.
I also note, however, that Michael Deck testified at the first penalty-phase
trial, which was conducted immediately upon the jury’s initial finding of guilt.
The substance of Michael Deck’s testimony involved Deck’s upbringing and the
relationship he had with his family. At the post-conviction motion hearing, Deck’s
- 35 -

trial counsel testified that Michael Deck was in the military during the relevant
time and was not in the State of Missouri at the time trial began. Counsel testified
that the defense team interviewed Michael Deck by telephone and determined that
he would be an effective mitigation witness during the penalty phase. (Resp. Exh.
N at 134-35.) This testimony belies Deck’s contention that counsel failed to
investigate Michael Deck as a potential witness.
To the extent Deck argues that counsel should have investigated Michael
Deck and presented his testimony at the guilt phase of the trial given his purported
information regarding Boliek’s alibi and Deck’s innocence, Deck offers nothing
but speculation that Michael Deck had such information and would have provided
this testimony. Prejudice cannot be found on speculation alone. Because Deck
could not succeed on a claim that trial counsel was ineffective for failing to
investigate and call Michael Deck to testify at the guilt phase of his trial, postconviction counsel was not ineffective for failing to bring this unsubstantial claim
on post-conviction review.
Kathy Brewster
Deck avers that his mother, Kathy Brewster, had information relating to
Boliek’s alibi and would have testified to Deck’s innocence. Because Deck
presents nothing other than speculation to support this averment, he cannot succeed
on his claim that counsel was ineffective in relation to their conduct involving Ms.
- 36 -

Brewster. Nevertheless, I find counsel’s failure to call Ms. Brewster to testify to
be a matter of sound trial strategy. Deck’s claim of ineffective assistance of
counsel in this regard thus fails.
At Deck’s post-conviction hearing, trial counsel testified that they or
members of the defense team met and/or spoke with Brewster on numerous
occasions prior to trial. Counsel’s impression from these meetings was that
Brewster was more concerned with her daughter, Tonia Cummings, than with
Deck. Counsel specifically testified that they determined not to call Brewster to
testify at the penalty phase of the trial because she appeared not to be
“wholeheartedly behind her son” and was not “trust[ed] . . . to testify on behalf of
her son.” (Resp. Exh. N at 91, 112, 115, 137-39.) There is no indication that
Brewster’s demeanor or focus would have been different during the guilt phase of
the trial, and Deck has presented nothing so indicating.
The decision to call family members as witnesses is a strategic decision.
Walls v. Bowersox, 151 F.3d 827, 834 (8th Cir. 1998). The failure to present
witness testimony that could be detrimental to the defense is not unreasonable
under Strickland. See Johns v. Bowersox, 203 F.3d 538, 546 (8th Cir. 2000); see
also Haley v. Armontrout, 924 F.2d 735, 740 (8th Cir. 1991) (counsel did not
render ineffective assistance by failing to use witness testimony that would not
have benefitted petitioner and may have had significant detrimental effect).
- 37 -

Counsel’s reasons not to call Brewster to testify at the penalty phase of the trial
apply equally to the guilt phase of the trial. Because counsel reasonably
determined that Brewster’s testimony could be more detrimental to Deck than
beneficial, Deck cannot overcome the strong presumption that counsel’s failure to
call her to testify at the guilt phase of the trial was sound trial strategy. See Walls,
151 F.3d at 834 (not ineffective assistance in failing to call family members to
testify when such testimony would have revealed their total lack of support).
Further, Deck’s unsupported contention that counsel failed to properly conduct an
investigation with respect to Brewster is belied by the record and without merit.
Post-conviction counsel is not ineffective for failing to bring a nonmeritorious claim of ineffective assistance of trial counsel.
Tonia Cummings
Deck’s sister, Tonia Cummings, was a co-defendant in the underlying
criminal action and was likewise charged with two counts of murder first degree
and armed criminal action, burglary, and stealing in relation to the Long murders.
(Resp. Exh. N at 22.) Deck avers that Cummings would have given testimony
regarding his innocence and her fear of James Boliek that caused her to implicate
herself and Deck in the Long murders.
At the hearing on Deck’s motion for post-conviction relief, Cummings’ trial
counsel testified that she would have advised Cummings not to testify at Deck’s
- 38 -

trial because of the possibility that she could incriminate herself, thereby causing
harm to herself. (Resp. Exh. N at 27.) Deck’s trial counsel testified that they
attempted but were unable to speak with Cummings prior to trial and were told by
Cummings’ attorney that she was a “basket case.” (Id. at 98, 140.) Counsel cannot
be considered ineffective for failing to secure testimony from a witness unavailable
to testify on the advice of her own counsel. See Weaver v. United States, 793 F.3d
857 (8th Cir. 2015).
Further, a review of the evidence adduced at the post-conviction proceedings
shows that evidence from Cummings would have likely had a detrimental effect on
Deck’s defense. During the post-conviction proceedings, Cummings submitted an
affidavit attesting that she and Deck drove to the Long residence on July 8, 1996;
that Deck was at the residence for ten to fifteen minutes; that she did not see Deck
with a gun while he was at the residence; and that Deck had earlier bragged about
burglarizing a home that had a safe. Cummings also attested to other persons’ fear
of James Boliek and to other persons’ beliefs that he committed the murders.
(Resp. Exh. M at 7-8.) These matters to which Cummings attested are damaging to
Deck and would not have exonerated him. In light of these sworn statements that
are damaging to Deck, it cannot be said that a reasonable probability exists that
Deck’s trial would have had a different result had counsel called Cummings to
testify. The failure to present witness testimony that could be detrimental to the
- 39 -

defense is not unreasonable under Strickland. See Johns, 203 F.3d at 546. Postconviction counsel was therefore not ineffective for failing to bring this
unsubstantial claim on post-conviction review.
Petitioner Carman Deck
Deck contends that if he had been permitted to testify at trial, he would have
testified that he was innocent, that his confession was false and given in response
to abusive interrogation, and that he feared James Boliek.
As an initial matter, I note that Deck raised a claim in his pro se postconviction motion that trial counsel was ineffective for disagreeing with him on the
issue of testifying on his own behalf. (Resp. Exh. L at 10.) This claim was not
raised in the amended motion filed by appointed counsel. (Resp. Exh. O at 23334.) At the post-conviction hearing, the trial court provided Deck the opportunity
to pursue the claim; but Deck, speaking on his own behalf, informed the court that
he did not want to pursue it. (See id. at 231-34.) I question how post-conviction
counsel can be ineffective for failing to raise a claim of ineffective assistance of
trial counsel that Deck himself told the court he did not want to pursue.
Nevertheless, the record before the post-conviction motion court shows trial
counsel did not act unreasonably with respect to Deck’s ability to testify on his
own behalf.
A criminal defendant has the ultimate authority to decide whether to testify
- 40 -

on his own behalf. Whitfield v. Bowersox, 324 F.3d 1009, 1013 (8th Cir.), vacated
in part on other grounds, 343 F.3d 950 (8th Cir. 2003). Counsel may advise a
defendant not to testify, however, as a matter of reasonable trial strategy. Id. at
1016-17. At the hearing on Deck’s post-conviction motion, counsel testified that
no issue arose with respect to Deck’s right to testify and, further, that during the
course of the trial, counsel came to believe that having Deck testify would have a
detrimental effect.
A.
[W]e had discussed various times during our representation and
our preparation of whether or not Carman would testify. We had
never made any hard and fast rule about Carman testifying or not
testifying. When we actually got into trial I think Carman was
sufficiently nervous that he never pushed the issue about testifying
and after all was said and done I certainly didn’t want to put him on
the stand and have him cross-examined about his statements that he’d
given to the police upon his arrest. Didn’t want to have him go
through that again. It was very damaging. So I felt it was in his best
interest to keep him off the stand and that was never a big point that
we had to argue.
Q.
You felt that would highlight his testimony about his
confession?
A.

Right.

Q.

By having to go through it again?

A.

Yes.

Q.
And you felt that -- We’re talking about both guilt and penalty
phase?
A.

Right.
- 41 -

(Resp. Exh. O at 230.)
Deck does not assert that counsel overbore his will to testify, and the record
shows that the issue never arose between him and counsel given his nervousness at
trial and counsel’s belief that his testimony would actually serve to do more harm
than good. Deck makes no argument nor presents any evidence that his testimony,
if adduced, would have made a difference to the jury. Counsel cannot be found to
be ineffective for determining, for sound strategic reasons, that Deck should not
testify and for not pursuing the issue where none existed.
Accordingly, Deck has not shown that his trial counsel’s performance was
deficient or that he suffered any prejudice on account of counsel’s assistance
regarding his right to testify, Whitfield, 324 F.3d at 1017, and post-conviction
counsel was not ineffective for failing to pursue this claim.
DNA Evidence
Deck contends that trial counsel was ineffective for failing to investigate
whether physical evidence seized at the Longs’ home and from his car could be
connected to the Longs through DNA testing. Deck does not specify what physical
evidence should have been tested, nor does he identify the purpose for such testing
other than “to exclude physical evidence belonging to the Longs.” (Traverse, ECF
#67 at 54.) Nor does he explain how information obtained through DNA testing
- 42 -

would have aided him such that a reasonable probability exists that the outcome of
his trial would have been different. By failing to provide any specifics, Deck has
failed to demonstrate either deficient performance or any prejudice from counsel’s
conduct. Forest v. Delo, 52 F.3d 716, 722 (8th Cir. 1995).
Nevertheless, testimony adduced at trial showed that items seized from
Deck’s car yielded no blood evidence; and testing of Deck’s clothing yielded no
trace evidence, such as blood, hair, or fibers from the crime scene. (Resp. Exh. F
at 660-61, 681-82, 688-89.) In addition, various items from the Long residence, as
well as the decorative tin and the gun seized from Deck’s car, were dusted for
fingerprints (id. at 656-58, 694-95), but, as stipulated by the parties at trial, the
fingerprint evidence had no evidentiary value – it could not be compared to either
Deck’s or the victims’ fingerprints. (Id. at 694.) Given that evidence and
testimony adduced at trial showed no forensic link between the physical evidence
seized and the Longs’ belongings, I am unable to conclude that counsel rendered
ineffective assistance for failing to investigate or adduce additional evidence for
the purpose of excluding such a link. The failure to present cumulative evidence
does not result in prejudice sufficient to give rise to a claim of ineffective
assistance of counsel. Winfield v. Roper, 460 F.3d 1026, 1034 (8th Cir. 2006).
Post-conviction counsel was therefore not ineffective for failing to raise this
unsubstantial claim.
- 43 -

Accordingly, it cannot be said that Deck’s underlying claim of ineffective
assistance of trial counsel with regard to the above-named witnesses and evidence
was so substantial that post-conviction counsel was ineffective for failing to raise
the claim during post-conviction proceedings. Deck has thus failed to show
adequate cause to excuse his default of the claim raised in Ground 6 of the petition,
Martinez, 566 U.S. at 15-16, thereby making a determination of prejudice
unnecessary. Cagle, 474 F.3d at 1099. Nor has Deck shown that a fundamental
miscarriage of justice would result if I were not to address the merits of his
underlying claim.
Accordingly, because the claim raised in Ground 6 of the petition is
procedurally barred, it will be denied.
3.

Ground 7 – Introduction of Prior Convictions During Voir Dire

The venire panel from which jurors were selected to determine Deck’s guilt
underwent voir dire examination in relation to the guilt phase of the trial as well as
in relation to a potential penalty phase. The petit jury that found Deck guilty
proceeded to determine his penalty at the first penalty-phase trial and ultimately
recommended the death sentence for the Long murders. During the voir dire
examination, Deck’s trial counsel stated to the venire that, if the matter were to
proceed to the penalty phase, they may hear evidence that Deck had some prior
criminal convictions for non-violent offenses. Because of this, the petit jury
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selected from this venire – and who determined Deck’s guilt – had knowledge
during the guilt phase of the trial that Deck had prior convictions. Deck argues
here that trial counsel was ineffective for informing the jury of his prior
convictions and that this deficient performance prejudiced his defense in that the
jury was more likely to find him guilty of the offenses charged given his known
history of criminal conduct.
Counsel’s actions during voir dire are considered matters of trial strategy.
See Miller v. Francis, 269 F.3d 609, 615 (6th Cir. 2001); see also, e.g., Knese v.
Roper, No. 4:03CV1082 CEJ (TIA), 2006 WL 2506005, at *6-8 (E.D. Mo. Aug.
28, 2006) (method of voir dire matter of trial strategy). In conducting voir dire
examination for a capital case, defense counsel’s informing the venire panel that
the defendant has prior convictions does not per se constitute ineffective assistance
of counsel under Strickland. See Brown v. Luebbers, 344 F.3d 770, 781-82 (8th
Cir. 2003) (noting the jury “surely would find out about it” since prosecution
intended to argue prior conviction as aggravating factor; matter of trial strategy);
Caldwell v. Steele, No. 4:06CV394 RWS, 2009 WL 90352, at *11 (E.D. Mo. Jan.
14, 2009) (no deficient performance when, as matter of trial strategy, counsel
informed venire of petitioner’s prior record in order to remove potential jurors who
would negatively assess petitioner’s testimony based thereon); State v. Moore, 930
S.W.2d 464, 469 (Mo. Ct. App. 1996) (no prejudice from defense counsel
- 45 -

revealing two prior convictions to venire where State introduced strong evidence of
guilt at trial). Cf. Barnett v. Roper, No. 4:03CV00614 ERW, 2006 WL 2475036,
at *41-44 (E.D. Mo. Aug. 24, 2006) (no ineffective assistance where, as a matter of
trial strategy, counsel did not inform venire of petitioner’s prior convictions
because counsel knew petitioner would not testify during guilt phase of trial).
Viewing the voir dire examination in context here, defense counsel informed
the venire panel that evidence may show that Deck had prior convictions of a nonviolent nature. Counsel then asked the panel if this circumstance would prevent
any potential jurors from fully considering evidence offered on behalf of Deck
during a possible penalty trial. (Resp. Exh. E at 452.) It thus appears that counsel
was attempting to weed out those potential jurors who would not be able to fully
consider mitigating evidence favorable to Deck on account of prior convictions.
This is reasonable strategy. State v. Johnson, 901 S.W.2d 60, 62 (Mo. banc 1995).
In the circumstances of this case, it cannot be said that trial counsel’s
challenged conduct during voir dire was deficient. Because counsel’s conduct was
not deficient, Deck cannot establish ineffective assistance of counsel. Brown, 344
F.3d at 782. Because Deck’s claim of ineffective assistance of trial counsel is not
substantial, post-conviction counsel was not ineffective for failing to raise the
claim during post-conviction proceedings. Deck has thus failed to show adequate
cause to excuse his default of the claim raised in Ground 7 of the petition.
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Martinez, 566 U.S. at 15-16. Nor has Deck shown that a fundamental miscarriage
of justice would occur if I were not to review the claim. The claim raised in
Ground 7 will therefore be denied.
4.

Ground 8 – Testimony from Witness Knoll re Long Residence

In his eighth ground for relief, Deck contends that trial counsel was
ineffective for failing to object to certain portions of testimony provided by State
witness Shane Knoll, arguing that the testimony was inadmissible hearsay and thus
its introduction violated his right to confront witnesses as guaranteed by the Sixth
Amendment.
During the guilt phase of the trial, Detective Shane Knoll of the Jefferson
County Sheriff’s Department provided the following testimony regarding his
interrogation of Deck after Deck was taken into custody on July 8, 1996: During
the course of the interrogation, Deck made statements both orally and in writing.
On the morning of July 9, Detective Knoll asked Deck “what happened,” and Deck
provided a statement that Jim Boliek approached him and Tonia and wanted them
to follow Boliek to DeSoto; that when they did, they parked on a side road, and
Boliek told them he would be back in about ten to fifteen minutes and for them to
wait for him; that when Boliek returned, he gave Deck a pistol and a can of
quarters and told Deck and Tonia to follow him back to St. Louis; and that Tonia
became sick on the way back to St. Louis, and he took her to the hospital. At the
- 47 -

time Deck gave this statement to Detective Knoll, no crime scene had yet been
discovered. Detective Knoll then asked Deck where Boliek was so that an attempt
could be made to determine the location of the crime scene. In response, Deck told
him “to go to the fourth house on the left on Long Road.” (Resp. Exh. F at 75255.)
Detective Knoll testified that he then contacted Corporal John Dolen and
told him where to go. (Resp. Exh. F at 755.) Detective Knoll testified further:
A.
. . . Probably three minutes after that I received a phone call
back from Corporal Dolen, who said, in fact, that they were at the
Long residence and at that time they had two people that were
deceased.
Q.

At that time what did you do?

A.
Sergeant Carle started making necessary phone calls to activate
other detectives because at this point we’re working a double
homicide. He was on the phone. I basically stayed with Carmen12
Deck. Then once after Sergeant Carle made his phone calls Carmen
was placed back in his holdover cell in the fourth precinct. We left
and went to the actual crime scene on Long Road.
Q.

Now, did you attempt to check out his story about Jim Boliek?

A.

Yes, I did.

(Id. at 755-56.)
Deck contends that trial counsel was ineffective for failing to object to
Detective Knoll’s testimony regarding Corporal Dolen’s out-of-court statement
12

Throughout the trial transcript, Deck’s first name is misspelled as “Carmen.”
- 48 -

regarding two deceased persons found at the location described by Deck, arguing
that the statement was hearsay and inadmissible at trial. Deck argues that if
counsel had objected to this testimony, the jury would have been advised to
disregard the statement, resulting in a reasonable probability that the outcome of
the trial would have been different. Because Detective Knoll’s testimony did not
constitute hearsay, the claim fails.
The Sixth Amendment secures the right of an accused to be confronted with
the witnesses against him. This protection serves to bar the introduction of
testimonial hearsay. Crawford v. Washington, 541 U.S. 36, 51 (2004). However, a
statement offered for its effect on the listener rather than for the truth of the matter
asserted is not hearsay. United States v. Wright, 739 F.3d 1160, 1170 (8th Cir.
2014). Such non-hearsay statements include those offered to explain the reasons
for or propriety of a police investigation. United States v. Malik, 345 F.3d 999,
1001 (8th Cir. 2003).
Here, testimony of Corporal Dolen’s out-of-court statement was offered for
the purpose of explaining why Detective Knoll continued in his investigation and
the manner by which he did – that is, that a crime scene had been established
which was linked to Deck’s account implicating Jim Boliek, and that further
investigation into the scene and into Boliek needed to be conducted. See, e.g.,
United States v. Brooks, 645 F.3d 971, 977 (8th Cir. 2011) (statement explained
- 49 -

why officers went to residence and why they would be more interested in
apprehending certain individual); Suggs v. Stanley, 324 F.3d 672, 681-82 (8th Cir.
2003) (upholding admission of officer’s statement about what dispatcher told him
because it was offered to show why officer went to a specific house). Further,
Deck squarely placed the propriety of the investigation into issue throughout the
trial of the case, with repeated challenges to the validity of his confession and the
extent to which Boliek was investigated. Statements explaining the course of a
police investigation in such circumstances are allowed into evidence. United
States v. Holmes, 620 F.3d 836, 841 (8th Cir. 2010) (citing Malik, 345 F.3d at
1001-02).
Because Detective Knoll’s challenged testimony regarding Corporal Dolen’s
statement is not hearsay, counsel did not err in failing to object to it on hearsay
grounds. Counsel is not ineffective for failing to raise a non-meritorious objection.
See McReynolds v. Kemna, 208 F.3d 721, 724 (8th Cir. 2000) (“[C]ounsel did not
act outside the spectrum of professionally reasonable performance in failing to
urge a Confrontation Clause claim unlikely to succeed.”).
Nevertheless, the admission of Corporal Dolen’s statement that two
deceased persons were found at the Long residence was not prejudicial to Deck
given that other evidence establishing that fact was already properly before the
jury. See United States v. Bercier, 506 F.3d 625, 632 (8th Cir. 2007); United
- 50 -

States v. Ramos-Caraballo, 375 F.3d 797, 803-04 (8th Cir. 2004) (where evidence
is at most an extra helping of what jury has heard before, evidence is merely
cumulative and its admission does not result in reversible error). Deck therefore
cannot demonstrate how the exclusion of Corporal Dolen’s statement would have
had any effect on the outcome of the trial of this case. Where a petitioner cannot
show prejudice on account of counsel’s alleged deficient conduct, he cannot
demonstrate ineffective assistance of counsel.
Because Deck cannot demonstrate that trial counsel was deficient in his
failure to object to admissible evidence or that he was prejudiced by such conduct,
it cannot be said that the claim of ineffective assistance of trial counsel raised in
Ground 8 is so substantial that post-conviction counsel was ineffective for failing
to raise the claim on post-conviction review.
Because post-conviction counsel was not ineffective for failing to raise this
claim, Deck has failed to establish cause for his procedural default of the claim.
Nor has Deck shown that a fundamental miscarriage of justice would occur if I
were not to review the claim. Ground 8 of the petition will be denied.
5.

Ground 9 – Testimony from Witness Knoll re Boliek Alibi

In Ground 9, Deck challenges the following testimony from Detective Knoll
given in response to the prosecutor’s questioning on re-direct examination
regarding the investigation of Jim Boliek:
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Q.

How many people besides Jim Boliek gave him an alibi?

A.

His –

Q.

From the night before?

A.
His girlfriend, which would be Carmen’s mother, Ms. Brewster;
his father, William Boliek; and a neighbor. Let me get her name.
Elaine Gunther. All gave an alibi.
(Resp. Exh. F at 790.) Deck contends that trial counsel was ineffective for failing
to object to this hearsay testimony that Jim Boliek had an alibi and that the alibi
was corroborated by other people.
As discussed above, Detective Knoll had previously testified on direct
examination that, once he received information about deceased persons being
found at the Long residence, he followed up on Deck’s statement that Jim Boliek
was involved and went to investigate Boliek. Detective Knoll further testified on
direct examination that during this investigation, he interviewed Boliek, Kathy
Brewster, William Boliek, and Elaine Gunther regarding Boliek’s whereabouts on
the evening of July 8. (Resp. Exh. F at 756-57.) After conducting this
investigation, Detective Knoll returned to the crime scene and then eventually
returned to the sheriff’s department to reinitiate contact with Deck. (Id. at 757.)
On direct examination, Detective Knoll testified regarding this reinitiated contact:
A.
I told him, I said, Carmen, I said, I spoke with James Boliek,
his mother, his father and a neighbor, and I said that James Boliek
couldn’t have been involved in this and I said, you need to tell me
- 52 -

what really happened, and he looked at me and he said, what do I do.
I said, you simply tell me the truth.
Q.
Did you ask him or tell him why Jim Boliek couldn’t be
involved in it before you asked him or any other questions?
A.

Told him he had an alibi.

Q.
After he asked you what he should do and you told him to tell
the truth, did you continue to ask him questions?
A.

Yes, I did.

Q.

What’d you ask him next?

A.

I asked him what really happened.

(Id. at 761.) Deck raises no challenge to this testimony or to his counsel’s conduct
relating thereto.
During cross examination, defense counsel questioned Detective Knoll
extensively about his investigation of Jim Boliek and elicited testimony to support
an inference that the investigation was incomplete and failed to consider matters
that could give rise to Boliek’s own guilt. Counsel specifically asked Detective
Knoll about the alibi witnesses’ recollection of Boliek’s truck being parked outside
his home on the evening of July 8 but also elicited testimony that these witnesses
were not asked about the whereabouts of another car owned by Boliek. Counsel
also asked Detective Knoll about his investigation regarding Boliek’s firearms,
whether Boliek’s property was searched, or whether Boliek underwent the same
- 53 -

type of questioning as Deck in relation to the crime. (Resp. Exh. F at 777-79, 78384, 789.) Upon the conclusion of this questioning by defense counsel, the
prosecutor asked Detective Knoll on re-direct about the alibi witnesses, to which
Detective Knoll gave the responses that Deck now challenges as hearsay. (Id. at
790.)
“[O]ut-of-court statements that explain subsequent police conduct are
admissible for non-hearsay purposes to show why an investigation focused on a
defendant.” Belford v. Roper, No. 03CV613 RWS, 2006 WL 2850543, at *10
(E.D. Mo. Sept. 29, 2006) (internal citation and quotation marks omitted). See also
State v. Howard, 913 S.W.2d 68, 70 (Mo. Ct. App. 1995). Here, Detective Knoll’s
initial testimony of Boliek’s alibi explained his subsequent police conduct in
focusing his investigation on Deck. This testimony was not inadmissible hearsay.
See Irons v. Dormire, No. 4:03-CV-513 CAS, 2006 WL 2811487, at *12-13 (E.D.
Mo. Sept. 28, 2006); State v. Dunn, 817 S.W.2d 241, 243 (Mo. banc 1991) (when
viewed in context, statements explained subsequent police conduct and thus were
admissible, supplying relevant background and continuity).
On cross examination, defense counsel explored the depth of Detective
Knoll’s investigation into Boliek’s alibi in an apparent attempt to cast doubt upon
the investigation itself as well as raise the possibility that Boliek was involved in
the crime. This questioning of Detective Knoll is consistent with the defense
- 54 -

theory of the case, that is, that the criminal investigation into the crime was flawed,
that Deck’s confession was false and given as a result of this flawed investigation,
and that Boliek was the true perpetrator of the crime. The prosecutor’s follow up
questioning on re-direct examination was in response to defense counsel’s
questioning, which itself was done in response to the already admitted and
admissible testimony regarding Boliek’s alibi as reported by Boliek and three other
individuals.
To the extent Detective Knoll’s response to the prosecutor’s follow up
question on re-direct constitutes hearsay testimony, Deck cannot show prejudice by
its admission – and thus by counsel’s failure to object to it – given that this
testimony had already been corroborated by other admissible evidence, namely
Detective Knoll’s earlier testimony that explained why he redirected his attention
to Deck in his investigation. The admission of evidence on re-direct that three
persons supported Boliek’s alibi was not prejudicial to Deck because other
evidence establishing that fact was already properly before the jury. Bercier, 506
F.3d at 632; Ramos-Caraballo, 375 F.3d at 803-04 (where evidence is at most an
extra helping of what jury has heard before, evidence is merely cumulative and its
admission does not result in reversible error). Deck therefore cannot demonstrate
how the exclusion of this testimony on re-direct would have had any effect on the
outcome of the trial of this case. Where a petitioner cannot show prejudice on
- 55 -

account of counsel’s alleged deficient conduct, he cannot demonstrate ineffective
assistance of counsel.
Because Deck cannot demonstrate that trial counsel was deficient in his
failure to object to admissible evidence or that he was prejudiced by such conduct,
it cannot be said that this claim of ineffective assistance is so substantial that postconviction counsel was ineffective for failing to raise the claim on post-conviction
review.
Post-conviction counsel was not ineffective for failing to raise this claim,
and Deck has failed to establish cause for his procedural default of the claim. Nor
has Deck shown that a fundamental miscarriage of justice would occur if I were
not to review the claim. Ground 9 of the instant petition will be denied.
PENALTY PHASE
1.

Ground 20 – Failure to Investigate and Call Mitigation Witnesses

In Ground 20, Deck claims that trial counsel was ineffective for failing to
investigate and call the following witnesses at his third penalty-phase trial: 1)
Shawna Stegers, 2) Jeff Overbeck, 3) Tim Maupin, 4) Kenny Forir, 5) Gail Rector,
6) Terry Miserocchi, 7) Mary Monia, 8) Bob Georger, 9) Randy Deck, 10) Linda
Speakman, and 11) Hubert Brissette. Deck raised a similar claim in his postconviction motion, identifying eleven other witnesses whom he claimed trial
counsel should have called. After an evidentiary hearing, the post-conviction
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motion court denied that claim, and the Missouri Supreme Court affirmed the
denial. To the extent Deck did not name the proposed witnesses specifically
identified above in his post-conviction motion, he contends that post-conviction
counsel was ineffective for failing to include them, thereby constituting cause to
excuse his default for not raising the specific basis of this claim in State court. For
the following reasons, post-conviction counsel was not ineffective.
As summarized above, Deck underwent a third penalty-phase trial in
September 2008 upon remand from the United States Supreme Court. At this trial,
counsel presented the live testimony of Dr. Wanda Draper, a child development
expert; and Dr. Eleatha Surratt, a psychiatrist. See Deck IV, 381 S.W.3d at 346. In
preparation for the trial, Dr. Draper studied the depositions of Deck’s parents,
Mike Deck (his brother), Tonia Cummings, Mary Banks (his aunt), Elvina and
Norman Deck (aunt and uncle), Stacey Tesreau-Bryant (girlfriend) and her son,
Major Puckett (short-term foster parent), and Carol and Art Miserocchi. Dr.
Surratt interviewed Deck’s parents, Mike Deck, Tonia Cummings, Latisha Deck,
Mary Banks, Elvina Deck, Rita Deck, Wilma Laird, Stacey Tesreau-Bryant, and
Beverly Dulinski (another aunt). She also read the depositions of D.L. Hood,
Major Puckett, and the Miserocchis. In addition to the live testimony of these
expert witnesses, counsel also presented at trial the videotaped depositions of Mike
Deck and Mary Banks. Counsel also read aloud the depositions of Major Puckett
- 57 -

and Beverly Dulinski. See id. at 346, 348-49.
In its opinion affirming the denial of post-conviction relief, the Missouri
Supreme Court thoroughly summarized the testimony and evidence heard by the
jury from these witnesses and depositions, including that Deck suffered physical
problems as an infant; was beaten by his mother, who was described as having an
explosive temper; lacked emotional stability in his youth because of extreme
neglect and abandonment; was sexually abused; was “tortured” by his stepmother
(who was an alcoholic) by being forced to kneel on broomsticks; had his own fecal
matter smeared on his face by his stepmother, who then took a photograph of him
in this state and showed it to others; was taken to and left at the Division of Family
Services on more than one occasion as a child; was separated from his siblings and
placed in foster care with multiple families; and was taken from a relatively stable
foster home by his mother to live with her and her abusive boyfriend, Ron Wurst.
See Deck IV, 381 S.W.3d at 346-49. The supreme court noted Dr. Draper to have
testified to her opinion that Deck “suffered an ‘extreme case of a horrendous
childhood’ because he moved 22 times in 21 years, along with the abuse, neglect,
and lack of guidance”; and that “Dr. Surratt opined that [Deck’s] childhood was
similar to one of the ‘most extreme cases of child abuse ever described.’” Id. at
348.
At the post-conviction hearing, trial counsel testified regarding their
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preparation, investigation, and strategies leading up to and during the third penaltyphase trial. Specifically, counsel testified that they talked to a lot of people during
their investigation, which was much like finding “needles in haystacks” (Resp.
Exh. UU at 136-37, 245), and that they determined not to call witnesses who would
provide only cumulative evidence (id. at 126, 252-53). Counsel also testified that
they would have liked to have had family members give live testimony, but that
some witnesses were no longer available to testify or developed such hostility that
counsel could not be certain that they would provide testimony that supported their
defense. (See generally id. at 113-46, 178-94, 241-53.) Counsel therefore made
the decision that evidence of Deck’s abusive and neglect-filled childhood would
come in through the testimony of expert witnesses. (Id. at 247-48.)
Against this background, I turn to Deck’s current claim that trial counsel
should have called the additional witnesses named above.
Shawna Stegers, Jeff Overbeck, Gail Rector
Deck avers that Stegers and Overbeck would have testified that they knew
him in the late-1980’s and that he was outgoing, kind, generous, responsible, and a
good friend. According to Deck, Rector would have testified that Deck was her
son’s friend when they were teenagers and that he was a gentle person. Deck
contends that this evidence of positive attributes would have countered the
considerable negative evidence from which the jury may have believed that he was
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irretrievably damaged and incapable of good actions.
As noted by the supreme court, the penalty phase jury heard evidence that
Deck took on the primary parenting role for his brother and sisters “during periods
of extreme neglect” and was the only person on whom his siblings could depend.
Deck IV, 381 S.W.3d at 347. The jury also heard evidence that Deck developed a
positive relationship with the Pucketts, a foster family with whom he lived for
about a year; that he thrived while he was with them; and that he had such a good
relationship with Mrs. Puckett, he began to call her “mom.” Evidence also showed
that Mr. Puckett believed that Deck would have been a wonderful man if he were
allowed to stay with the Puckett family. Id. at 348. The jury also heard evidence
that when Deck was in his late teens, he asked his mother to move in with him in
order to protect her from her abusive boyfriend with whom she lived at the time.
Id. Finally, evidence was adduced that when Deck was twenty-nine years old, he
became engaged to a woman who had a child, with whom he had a good
relationship. Id.
On appeal of the denial of his post-conviction motion, the supreme court
found that some of the evidence Deck claimed counsel should have presented
through live witness testimony was cumulative to that presented to the jury –
including that witness Arturo Miserocchi would have testified that Deck was a cute
little kid with a wonderful personality; that Latisha Deck would have testified that
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Deck took care of her when she was little; and that Rita Deck would have testified
that he was a good kid and did not give her any trouble. Deck IV, 381 S.W.3d at
349-50. Because “[c]ounsel is not ineffective for not presenting cumulative
evidence,” the court determined Deck’s trial counsel not to have been ineffective
for failing to offer evidence that was repetitive to the mitigating evidence heard by
the jury. Id. at 351 (citing Skillicorn v. State, 22 S.W.3d 678, 683 (Mo. banc
2000)). 13
The same reasoning applies to proposed witnesses Stegers, Overbeck, and
Rector. The testimony that Deck avers would have been elicited from these
witnesses is cumulative to evidence that the jury already had before it, that is, that
he had positive attributes, was able to develop bonding relationships, and took care
of others. The failure to present cumulative evidence does not result in prejudice
sufficient to give rise to a claim of ineffective assistance of counsel. Winfield, 460
F.3d at 1034.
Tim Maupin and Kenny Forir
Deck avers that Maupin and Forir would have testified that he was abused
by his mother’s boyfriend, Ron Wurst, when he was a teenager and, further, that
his mother preferred Tonia over him. Because this testimony would have been

13

The supreme court did not address whether these proffered witnesses were available to testify
at trial.
- 61 -

cumulative to evidence adduced at trial that Deck’s mother was abusive and
neglectful and that Deck lived in an abusive environment with his mother and Ron
Wurst, see Deck IV, 381 S.W.3d at 347-48, it cannot be said that counsel’s failure
to adduce this cumulative evidence prejudiced Deck. Given that the jury already
had before it evidence of the extensive abuse suffered by Deck at the hands of his
mother and her companions, there is no reasonable probability that the third
penalty-phase trial would have yielded a different result if these witnesses provided
similar evidence.
Terry Miserocchi
Deck avers that he lived for a time with foster parents Arturo and Carol
Miserocchi and that their daughter, Terry, lived at the house while he was there.
Deck contends that Terry Miserocchi would have testified that he was an angry
child and did not fit in well with the family. Because this testimony would have
been cumulative to other evidence presented to the jury that Deck was with the
Miserocchi family for a short time and “did not make a connection” with them,
Deck IV, 381 S.W.3d at 348, Deck cannot show prejudice by counsel’s failure to
present this testimony. Winfield, 460 F.3d at 1034.
Further, the Missouri Supreme Court noted that counsel’s failure to present
live testimony from Arturo and Carol Miserocchi regarding their brief interaction
with Deck in the distant past, including testimony that he did not bond with the
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family and showed very little emotion, did not result in any prejudice to Deck
because such testimony “was so lacking in substance that it would not have had an
impact on the jury in their decision.” Deck IV, 381 S.W.3d at 349. There is no
more substance found in Terry Miserocchi’s proposed testimony here. Counsel
was not ineffective for failing to call her to testify at the penalty-phase trial.
Mary Monia and Bob Georger
Deck avers that Monia and Georger were his teachers and would have
testified that he was a good kid and well-behaved, wore old clothes, and was not
very clean. As noted above, the jury heard evidence of Deck’s positive attributes
when he was a child and a young man. The jury also heard evidence that he
dressed “shabby” and begged for food. Deck IV, 381 S.W.3d at 347. Because the
testimony offered by witnesses Monia and Georger would not have added anything
compelling to the mitigating evidence already before the jury, Deck cannot show a
reasonable probability that the jury would not have returned a verdict for the death
sentence if it had been presented with this testimony.
Randy Deck
Deck avers that his cousin, Randy Deck, would have testified that he had no
stability in his life.14 A review of the supreme court’s summary of the mitigating

14

Deck also contends that Jeff Overbeck would have likewise testified that Deck did not have
much stability in his life.
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evidence adduced at trial shows that most of the evidence presented to the jury
underscored the instability of Deck’s life, from infancy through adulthood. Randy
Deck’s testimony would not have added any information from which it can
reasonably be said that the jury would have returned a different verdict. Deck
cannot show that he was prejudiced by counsel’s failure to produce testimony from
Randy Deck.
Linda Speakman
Deck avers that Speakman, his uncle’s former wife, would have provided
background information regarding his grandparents and aunts and uncles as well as
information regarding Norman Deck, his uncle who sought to adopt him when he
was thirteen years old. Other than this vague reference to background information,
Deck does not identify what specific evidence Speakman would have provided or
how it would have benefited him during the penalty phase of the trial. Because
Deck provides no specificity as to the content of Speakman’s proposed testimony,
he cannot show how the outcome of the trial would have been different had she
testified. See Saunders, 236 F.3d at 952-53. Deck has thus failed to establish how
counsel was ineffective for failing to call Speakman to testify at the third penaltyphase trial.
Hubert Brissette
Deck avers that Hubert Brissette was an inmate at the Moberly Correctional
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Center when he was incarcerated there and would have testified that Deck made
poor choices in friends while in prison and was raped during his incarceration.
On post-conviction appeal, the Missouri Supreme Court addressed Deck’s
claim that counsel was ineffective for failing to call his former fiancée, Stacey
Tesreau-Bryant, to provide testimony that, inter alia, Deck had shared with her that
he was raped in prison. The court determined that counsel was not ineffective in
failing to elicit this testimony because it would have “called attention to [Deck’s]
adult criminal life rather than focusing on his traumatic childhood.” Deck IV, 381
S.W.3d at 352. There is no indication that Deck would have obtained a different
result from the post-conviction motion court, including the supreme court, if postconviction counsel had raised the same claim with regard to counsel’s failure to
call Hubert Brissette to testify to this same matter. Because the Missouri courts
determined that counsel was not ineffective for failing to present testimony that
Deck was raped in prison, it cannot be said that his current claim of ineffective
assistance of trial counsel for failing to adduce the same evidence was substantial
or had merit.
Prison Records
Finally, Deck argues that trial counsel should have presented complete
records from the Missouri Department of Corrections at the third penalty-phase
trial, averring that such records would have shown his “apparent lack of
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rehabilitation despite having been in prison” and that “the trauma he endured in
prison only exacerbated the effects of his childhood trauma.” (Amd. Petn., ECF
#30 at 85.) As noted above, the Missouri courts determined that counsel did not
render ineffective assistance in failing to adduce evidence that would have
highlighted Deck’s adult criminal record. This evidence would not have been
mitigating. Deck’s complete records documenting his previous criminal offenses,
sentences, incarcerations, and/or probationary periods as well as behavior,
disciplinary actions, and grievances while incarcerated or on probation would
instead support a finding that Deck is a criminal offender unable to be
rehabilitated, and counsel cannot be considered ineffective for failing to introduce
this damaging evidence.
As demonstrated above, Deck’s claim of ineffective assistance of trial
counsel raised in Ground 20 of this petition is not a substantial one. Therefore,
post-conviction counsel was not ineffective for failing to raise the claim during
post-conviction proceedings. Deck has therefore failed to establish cause for his
default of the claim. To invoke the “fundamental miscarriage of justice” exception
to showing cause and prejudice for a defaulted claim in the capital sentencing
context, Deck must show by clear and convincing evidence that, absent the
constitutional error, a reasonable juror would not have found the aggravating
factors that rendered him eligible for the death penalty. Sawyer v. Whitley, 505
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U.S. 333 (1992); see also Dretke v. Haley, 541 U.S. 386, 388 (2004)
(acknowledging Sawyer’s holding regarding “actual innocence” with respect to the
death penalty). Here, Deck has presented no such evidence. He therefore has
failed to show that failure to address his claim will result in a fundamental
miscarriage of justice.
Accordingly, Ground 20 of the petition is procedurally barred and will be
denied.
2.

Ground 22 – Failure to Obtain Ruling after Objection15

During the prosecutor’s opening statement at the third penalty-phase trial,
Deck’s trial counsel objected three times on the basis that the prosecutor was being
argumentative. On each occasion, the trial court instructed the prosecutor not to
engage in argument. The court also instructed the prosecutor to “stick to” the
purpose of the opening statement:
[PROSECUTOR]: I want you all to take a look over at this man, right
here. He’s sitting right there. His name’s Carman Deck. And the
reason the 12 – the 14 of you are here is because of July 8th, of 1996,
he made a choice. He made a conscious decision to kill Zelma and
James Long.
[DEFENSE]: Objection; argumentative.
15

Respondents assert that this ground fails to state a claim upon which relief can be granted
because of Deck’s failure to provide any reference in his petition to the purported objectionable
statements made by the prosecutor. In his Traverse, Deck cites to the specific instances during
the prosecutor’s opening statement where he claims his counsel was ineffective. I look to these
specific instances in addressing this claim.
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THE COURT: Mr. Zoellner, this is not final argument. Please stick
to the opening statement.
[PROSECUTOR]: And the reason you are here is because he wanted
to rob them. He went into their house after getting them on their bed;
after thinking for ten minutes, put a gun in his hand, standing over
them, whether they should live or die. He made a choice. He decided
their fate and put two in the back of the head of James Long and then
he put two rounds into the back of Zelma’s head. He chose to take a
life of two human beings for a little bit of money. And the reason you
are here and they are not is because of walking out that house –
[DEFENSE]: Objection; he continues to be argumentative.
THE COURT: Mr. Zoellner, this is not closing argument. Please
stick to the evidence and the facts you intend to present in your case.
...
[PROSECUTOR]: . . . And when this trial is over, I’m gonna come
before you, and I’m gonna ask you to consider both of those
punishments. And I ask you to put aside any passion or anger you
might have and look at them as calmly and coolly as Carman Deck
did. And I’m gonna ask you that you –
[DEFENSE]: Objection; argumentative.
THE COURT: Don’t argue, Mr. Zoellner.
(Resp. Exh. LL at 467-68, 479.) No further action was taken by either counsel or
the trial court in response to these statements.
On another occasion during opening statement, Deck’s trial counsel objected
to the prosecutor’s use of an exhibit that had not yet been introduced into evidence.
The trial court sustained the objection. (Resp. Exh. LL at 468-69.) No further
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action was taken by either counsel or the trial court.
In the claim raised in Ground 22 of this petition, Deck contends that trial
counsel was ineffective for failing to secure a ruling and request relief from the
trial court after these objections. Specifically, Deck argues that counsel should
have requested a mistrial or, at the very least, should have requested that the court
instruct the jury to disregard the statements and exhibit. This claim fails.
Immediately prior to the prosecutor’s opening statement, the trial court
instructed the jury that its determination of facts could be made “only from the
evidence and the reasonable inferences drawn from the evidence”; that its
“decision must be based on the evidence presented to you in the proceedings in this
courtroom”; and that “opening statements of attorneys are not evidence.” (Resp.
Exh. JJ at 591, 593; Exh. LL at 467.) A jury is presumed to have followed the
court’s instructions, see Weeks v. Angelone, 528 U.S. 225, 234 (2000), and Deck
has presented nothing to suggest that the jury disregarded the court’s instructions
here. Cf. Abernathy v. Hobbs, 748 F.3d 813, 818 (8th Cir. 2014) (although
counsel’s professional judgment underlying his opening statement was
questionable, court’s clarifying instruction to the jury that opening statements are
not evidence served to resolve any confusion).
In Barton v. State, 432 S.W.3d 741 (Mo. banc 2014), the Missouri Supreme
Court held that where a jury is instructed that attorneys’ statements are not
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evidence, a defendant is unlikely to show prejudice from his counsel’s failure to
object to such statements. See id. at 754. Here, unlike in Barton, defense counsel
did object to the prosecutor’s argumentative statements and premature use of an
exhibit, and the trial court cautioned the prosecutor regarding this conduct.
Considering counsel’s objections together with the trial court’s instruction to the
jury that the attorneys’ statements are not evidence, it cannot be said that Deck has
shown that he was prejudiced by counsel’s failure to seek additional curative relief,
including a mistrial. Indeed, counsel would most likely have been met with defeat
had such a request been made. Declaring a mistrial at such an early stage of the
proceedings is a “drastic remedy” and must be exercised with “the greatest
caution.” State v. Irving, 559 S.W.2d 301, 309 (Mo. Ct. App. 1977). “When an
objection to improper statements to the jury has been made and no further relief is
sought, the courts have maintained confidence that the jury will be guided by
admissible evidence.” Id.
Further, given the evidence presented at trial, including the testimony of
fifteen witnesses, the introduction of deposition testimony from three additional
witnesses, the introduction of expert testimony, a trial record spanning over 450
pages, the introduction of seventy exhibits, and a jury instruction that attorneys’
statements are not evidence, Deck cannot show that the prosecutor’s brief
comments during opening statement had any significant effect upon the jury’s
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verdict. Deck has thus failed to show prejudice from counsel’s failure to seek and
obtain additional curative relief. See Seehan v. State of Iowa, 72 F.3d 607, 610-12
(8th Cir. 1995).
Accordingly, in the absence of showing prejudice by counsel’s conduct in
failing to seek and obtain additional relief during the prosecutor’s opening
statement, Deck cannot establish that he received ineffective assistance of trial
counsel in this regard. Post-conviction counsel was thus not ineffective for failing
to raise this unsubstantial claim of ineffective assistance of trial counsel. Deck has
therefore failed to establish cause for his default of the claim. Nor has he shown
that a fundamental miscarriage of justice will occur if I do not address the merits of
the claim. The claim raised in Ground 22 will be denied.
3.

Ground 29 – Failure to Object to Lack of Mandatory Instruction

At the time of Deck’s third penalty-phase trial, MAI-CR 3d 313.00 Supp.
Notes on Use 6(A)(1)(b) required that the following instruction be read to the jury
panel immediately before starting the “death qualification” phase of voir dire:
At this stage of the jury selection process, the attorneys are
permitted to question you concerning your views on punishment.
Nothing that is said by the attorneys or by another prospective juror
during this process is evidence, and you should not let any such
statements influence you in any way.
The possible punishments for the offense of murder in the first
degree are imprisonment for life by the Department of Corrections
without eligibility for probation or parole, or death. The purpose of
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this questioning is to discover whether or not you are able to consider
both of these punishments as possible punishments.
The Court will instruct the jury as to the process it must follow
to reach its decision on punishment. For present purposes, you should
be aware that a conviction of murder in the first degree does not
automatically make the defendant eligible for the death penalty.
Before the jury may consider imposing the death penalty, it
must also find, unanimously and beyond a reasonable doubt, that the
evidence before it establishes the existence of at least one special fact
or circumstance specified by law, called a statutory aggravating
circumstance. If no statutory aggravating circumstance is found, the
defendant cannot be sentenced to death.
If the jury does find at least one statutory aggravating
circumstance, it still cannot return a sentence of death unless it also
unanimously finds that the evidence in aggravation of punishment,
taken as a whole, warrants the death penalty, and that this evidence is
not outweighed by evidence in mitigation of punishment. The jury is
never required to return a sentence of death.
Counsel for the State may proceed.
MAI-CR 3d 300.03A (modified). The trial court failed to read this instruction,
however, and trial counsel did not object to this failure. In Ground 29 of this
petition, Deck claims that trial counsel’s failure to object constituted ineffective
assistance.
The failure of a trial court to give a required instruction is error. State v.
Roberts, 948 S.W.2d 577, 587 (Mo. banc 1997). In Missouri, reversal is not
mandated for this error unless the defendant suffers prejudice as a result. Id.
“Prejudice occurs where the jury ‘may have been adversely influenced . . . by the
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lack of an instruction required by statute.’” Id. (quoting State v. Betts, 646 S.W.2d
94, 98 (Mo. banc 1983)). See also State v. Anderson, 306 S.W.3d 529, 539 (Mo.
banc 2010) (reversal warranted only when instructional error so prejudicial that it
deprived defendant of a fair trial). There was no adverse effect here.
Before the death qualification voir dire began, the trial court instructed the
panel that, “in order to consider the death penalty, you must find one or more
statutory aggravating circumstances beyond a reasonable doubt. The burden of
causing you to find the statutory aggravating circumstances beyond a reasonable
doubt is upon the State.” Deck III, 303 S.W.3d at 547. Trial counsel then
addressed the panel and told the venire that they would be asked specifically about
life in prison without the possibility of parole or the alternative, the death penalty;
and the court further advised the venire that they would be asked about their
attitudes regarding these punishments, which were the only sentences available in
the case, and whether they could realistically consider both punishments. Id. The
venire was also told that before a death sentence can be considered: (1) the State
must prove at least one statutory aggravating circumstance beyond a reasonable
doubt, on which the jury must unanimously agree; (2) the jury must then also
determine whether the aggravating circumstances as a whole justified a death
sentence; and (3) the jurors must also conclude that the aggravating circumstances
outweigh any mitigating circumstances. Id. Finally, the venire was told that a
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juror is never required to vote for death and that the failure to unanimously make
the required findings would automatically result in a sentence of life imprisonment
without parole. Id.
In short, while the instruction set out in MAI-CR 3d 300.03A was not
formalistically recited to the jury panel by chapter and verse, the information and
law required to be given to the venire through the instruction was indeed given
before death qualification voir dire began. It cannot be said, therefore, that the jury
was adversely influenced by the lack of a formalistic reading of the instruction or
that Deck was deprived of a fair trial on account of it.
Given that Deck was not prejudiced by the lack of a formalistic reading of
the instruction, trial counsel’s failure to object to the court’s failure to give the
instruction did not result in prejudice to Deck. In the absence of showing prejudice
by counsel’s conduct, Deck cannot establish that he received ineffective assistance
of counsel in this regard. Accordingly, Deck’s claim of ineffective assistance of
trial counsel was not so substantial that post-conviction counsel was ineffective for
failing to raise the claim during post-conviction proceedings. Nor has Deck shown
that a fundamental miscarriage of justice would occur if I were not to address the
merits of the claim.
Ground 29 is therefore procedurally barred from federal habeas review and
will be denied.
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C.

Defaulted Claims Not Subject to Martinez Analysis
1.

Ground 19 – Assistance of Trial Counsel re Witness Ed Kemp

In his nineteenth ground for relief, Deck contends that trial counsel rendered
ineffective assistance by failing to investigate and call numerous mitigation
witnesses to testify on his behalf at his third penalty-phase trial. Among the
witnesses whom Deck claims counsel should have investigated and called is Ed
Kemp. Respondents argue, however, that Deck did not properly raise this claim in
State court with regard to Kemp. Deck argues to the contrary, stating that the
claim was properly raised during post-conviction proceedings. For the following
reasons, a review of the record shows Deck did not properly raise the claim in
State court. The claim is thus procedurally defaulted.
In his motion for post-conviction relief, Deck argued that trial counsel was
ineffective for failing to investigate and present the testimony of several mitigation
witnesses at his third penalty-phase trial. (Resp. Exh. QQ at 29-66.) Deck did not
name Ed Kemp in his motion as one of these witnesses. (Id.) In response to
respondents’ argument that the claim is defaulted as to witness Kemp, Deck
contends that he presented an oral stipulation at the post-conviction motion hearing
regarding Kemp’s testimony and addressed the matter during counsel’s hearing
testimony. With this argument, Deck appears to contend that the claim is not
defaulted.
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Giving Deck the benefit of the doubt and assuming arguendo that his oral
statement regarding Kemp was sufficient to raise the claim during his initial postconviction proceeding, a review of the record shows that Deck nevertheless did not
raise this claim regarding Kemp on post-conviction appeal. (See Resp. Exh. VV.)
“Failure to raise a claim on appeal from the denial of a post-conviction motion
erects a procedural bar to federal habeas review.” Jolly v. Gammon, 28 F.3d 51, 53
(8th Cir. 1994); see also Storey, 603 F.3d at 523. Accordingly, I cannot review the
claim in this federal habeas proceeding absent a showing of cause and prejudice, or
that a fundamental miscarriage of justice would result if I were not to review the
claim.
Deck does not assert any cause for failure to raise the Kemp claim on postconviction appeal and indeed appears to argue that there is no procedural default
given his stipulation regarding Kemp at the post-conviction hearing.16 Deck’s
failure to show cause for his procedural default makes a determination of prejudice
unnecessary. Cagle, 474 F.3d at 1099. Nor has Deck shown that failure to
determine the merits of this procedurally defaulted claim will result in a
fundamental miscarriage of justice.

16

To the extent Deck may argue that counsel on post-conviction appeal was ineffective for
failing to raise the Kemp claim on appeal, I note that ineffective assistance of post-conviction
appellate counsel cannot constitute cause to excuse procedural default. Arnold v. Dormire, 675
F.3d 1082, 1087 (8th Cir. 2012).
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Accordingly, the claim raised in Ground 19 with respect to witness Ed Kemp
is procedurally barred from federal habeas review and will be denied.
2.

Ground 24(b) – Assistance of Trial Counsel, Failure to Object re
Improper Personalization

In the caption of Ground 24, Deck contends that trial counsel was ineffective
at the third penalty-phase trial for failing 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, however, Deck
raises an additional factual basis to support his argument that counsel was
ineffective, and specifically, that counsel failed to object to the prosecutor’s
improper personalization during closing argument when 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, he did not raise on postconviction appeal that part of his claim challenging counsel’s failure to object to
the prosecutor’s improper personalization argument. (See Resp. Exh. VV at 128–
32.) That portion of Ground 24, therefore, is defaulted.
A claim must be presented at each step of the judicial process in State court
in order to avoid procedural default. Jolly, 28 F.3d at 53. The failure to present a
claim on appeal from the denial of a post-conviction motion results in a procedural
default of that claim. Id. To be fairly presented, the claim in State court must
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contain the same factual grounds and legal theories 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. 1996). Mere similarity in claims is insufficient. Abdullah,
75 F.3d at 412 (citing Duncan v. Henry, 513 U.S. 364 (1995) (per curiam)).
Broadening an ineffective assistance of counsel claim in a federal habeas
proceeding to include factual bases not raised before the State court is
impermissible. See Ward v. Norris, 577 F.3d 925, 935 (8th Cir. 2009).
As a basis for habeas relief in Ground 24, Deck claims that counsel was
ineffective for failing to object to that portion of the prosecutor’s closing argument
where he engaged in improper personalization, that is, asking the jurors to place
themselves in the victims’ shoes. On post-conviction appeal, Deck argued that
counsel was ineffective for failing to object to that portion of the prosecutor’s
closing argument where he asked the jurors to consider Deck’s prior escapes and
his help to other prisoners in planning escapes. While both claims argue a failure
to object, the sole factual basis of the claim raised on post-conviction appeal is
substantially different than the additional factual basis raised here.
Deck failed to assert the factual basis of improper personalization on postconviction appeal. That factual aspect of the claim is therefore procedurally barred
from review by this Court unless Deck can show cause for his default and actual
prejudice resulting from the alleged unconstitutional conduct, or demonstrate that
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failure to consider the claim will result in a fundamental miscarriage of justice.
Coleman, 501 U.S. at 731-32, 750. Deck neither asserts nor shows cause for his
failure to raise this factual basis on post-conviction appeal with respect to his claim
of ineffective assistance of trial counsel. Nor has Deck presented any evidence of
actual innocence as it relates to imposition of the death penalty. Sawyer, 505 U.S.
at 336, 347-50. Therefore, my refusal to entertain this procedurally defaulted
aspect of the claim raised in Ground 24 will not result in a fundamental
miscarriage of justice.
Accordingly, the claim raised in Ground 24(b) is procedurally barred from
federal habeas review and will be denied.
3.

Grounds 23(b), 26, 28, and 32(b) – Assistance of Appellate Counsel

In Grounds 23(b), 26, 28, and 32(b), Deck contends that he received
ineffective assistance of counsel on direct appeal of his final death sentence when
counsel failed to raise on appeal claims of prosecutorial misconduct, a claim of
trial court error during jury deliberations, and a claim of unconstitutional delay.
Deck did not raise these claims of ineffective appellate counsel at any proceeding
in State court. (See Resp. Exhs. QQ, VV.)
A claim must be presented at each step of the judicial process in State court
in order to avoid procedural default. Jolly, 28 F.3d at 53. Under Missouri law,
Missouri Supreme Court Rule 29.15 provides the exclusive means by which a
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petitioner may assert claims of ineffective assistance of direct appeal counsel.
Accordingly, Deck’s failure to raise these claims of ineffective assistance of
appellate counsel in his Rule 29.15 motion results in this Court being procedurally
barred from reviewing the claims in this federal habeas petition absent a showing
of cause and prejudice, or that a fundamental miscarriage of justice would result if
the Court were not to review the claims.
Deck concedes that he did not raise these claims in State court but asserts as
cause that post-conviction counsel was ineffective in their failure to raise the
claims in his Rule 29.15 post-conviction motion. Citing Martinez¸ Deck argues
that the ineffectiveness of post-conviction counsel excuses his procedural default.
This argument is misplaced.
“Inadequate assistance of counsel at initial-review collateral proceedings
may establish cause for a prisoner’s procedural default of a claim of ineffective
assistance at trial.” Martinez, 566 U.S. at 9. Martinez does not extend to defaulted
claims of ineffective assistance of appellate counsel, however. Dansby v. Hobbs,
766 F.3d 809, 833 (8th Cir. 2014). Deck asserts no other ground as cause for his
procedural default of the claims raised in Grounds 23(b), 26, 28, and 32(b) of this
petition and has thus failed to show cause sufficient to overcome his procedural
default. His failure to show cause makes a determination of prejudice unnecessary.
Cagle, 474 F.3d at 1099. Nor has Deck presented any evidence of actual
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innocence as it relates to the death penalty. Sawyer, 505 U.S. at 336, 347-50.
Therefore, my refusal to entertain these procedurally defaulted claims will not
result in a fundamental miscarriage of justice.
Accordingly, the claims raised in Grounds 23(b), 26, 28, and 32(b) are
procedurally barred from federal habeas review and will be denied.
4.

Ground 27 – Trial Error During Jury Deliberations

In Ground 27, Deck claims that the trial court erred during the third penaltyphase trial when it gave an improper response to a jury question during jury
deliberations. Specifically, Deck claims that when the jury asked a question
regarding aggravating circumstances in relation to the murder of James Long, the
trial court erred by responding to the question and instructing that its response also
applied in relation to the murder of Zelda Long. Deck did not raise this claim of
trial error on direct appeal of the third penalty-phase trial.
Missouri procedure requires that a claim for relief be presented at each step
of the judicial process. Jolly, 28 F.3d at 53. Under Missouri law, claims of trial
court error must be raised on direct appeal. Middleton v. State, 103 S.W.3d 726,
740 (Mo. banc 2003); Ham v. State, 7 S.W.3d 433, 440 (Mo. Ct. App. 1999).
Because Deck failed to raise the instant claim of trial court error on direct appeal,
the claim is procedurally defaulted and cannot be reviewed by this Court unless he
shows cause for his default and prejudice resulting therefrom, or that a
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fundamental miscarriage of justice would occur if the Court were not to address the
merits of the claim. Coleman, 501 U.S. at 750.
Deck appears to argue that his direct appeal counsel’s failure to raise this
claim on appeal constitutes cause sufficient to excuse his procedural default.17
While ineffective assistance of direct appeal counsel may constitute cause for
procedural default, Reese v. Delo, 94 F.3d 1177, 1182 (8th Cir. 1996) (citing
Murray v. Carrier, 477 U.S. 478, 492 (1986)), Deck must have first presented this
Sixth Amendment argument to the State court as an independent claim in order for
this federal habeas court to review the claim as cause for default. Edwards v.
Carpenter, 529 U.S. 446, 450-53 (2000); Taylor v. Bowersox, 329 F.3d 963, 971
(8th Cir. 2003) (citing Murray, 477 U.S. at 489); Charron v. Gammon, 69 F.3d
851, 858 (8th Cir.1995). Deck failed to do so here. (See Resp. Exh. QQ.) To the
extent Deck argues that the procedural default of his ineffectiveness claim is itself
excused by ineffective assistance of post-conviction counsel for failing to raise this
claim of ineffective assistance of appellate counsel, inadequate assistance of
counsel at initial-review collateral proceedings cannot establish cause for
procedural default of a claim of ineffective assistance of counsel on appeal.

17

Deck actually contends that post-conviction counsel was ineffective for failing to raise a claim
of ineffective assistance of appellate counsel for appellate counsel’s failure to raise the instant
claim of trial error on direct appeal. I will construe this layered argument as Deck’s attempt to
assert ineffective assistance of appellate counsel as cause for his default of this claim of trial
court error.
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Dansby, 766 F.3d at 833. I am therefore precluded from addressing alleged
counsel error as cause to excuse Deck’s procedural default of the claim now raised
in Ground 27. Williams v. Kemna, 311 F.3d 895, 897 (8th Cir. 2002). Deck
asserts no other cause to excuse his default.
Deck has thus failed to establish cause to excuse his procedural default, thus
obviating the need for me to determine whether prejudice has been shown. Cagle,
474 F.3d at 1099. In addition, because Deck has failed to show actual innocence
under Sawyer, my refusal to entertain his procedurally defaulted claim will not
result in a fundamental miscarriage of justice.
The claim raised in Ground 27 is procedurally barred from federal habeas
review and will be denied.
VII. Claims Addressed and Denied on the Merits
A review of the record shows Deck to have properly raised the following
claims in State court and that the Missouri Supreme Court, upon review of the
merits of the claims, denied relief. I therefore turn to the merits of these claims,
exercising limited and deferential review of the underlying State court decisions as
required by the AEDPA.

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GUILT PHASE
A.

Ground 2 – Change of Venue
In his second ground for relief, Deck contends that he was denied due

process, his right to be tried by a fair and impartial jury, his right to reliable
sentencing, and his right to be free from cruel and unusual punishment when the
trial court denied a change of venue. Deck specifically contends that the jury pool
from Jefferson County was so tainted by the extensive pretrial publicity given to
the Long murders that he could not receive a fair trial without a change of venue.
Deck raised this claim on direct appeal to the Missouri Supreme Court. Upon
review of the claim, the Missouri Supreme Court denied relief.
At the time Deck’s conviction became final, the law was clearly established
that “exposure to . . . news accounts of the crime with which [a defendant] is
charged [does not] alone presumptively depriv[e] the defendant of due process.”
Murphy v. Florida, 421 U.S. 794, 799 (1975). “It is sufficient if the juror can lay
aside his impression or opinion and render a verdict based on the evidence
presented in court.” Irvin v. Dowd, 366 U.S. 717, 723 (1961). “The relevant
question is not whether the community remembered the case, but whether the
jurors . . . had such fixed opinions that they could not judge impartially the guilt of
the defendant.” Patton v. Yount, 467 U.S. 1025, 1035 (1984). “It is not required . .
. that the jurors be totally ignorant of the facts and issues involved.” Irvin, 366
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U.S. at 722. A trial court’s findings of juror impartiality may “be overturned only
for ‘manifest error.’” Patton, 467 U.S. at 1031 (quoting Irvin, 366 U.S. at 723).
On direct appeal, the Missouri Supreme Court invoked this established
standard, Deck I, 994 S.W.2d at 532-33, and determined that the facts of the case
showed that Deck was not deprived of a fair and impartial jury because of pretrial
publicity. The court first noted that while evidence before the trial court showed
there had been nine newspaper articles and several television news broadcasts
addressing the crimes, all of this coverage occurred within a few weeks of the July
1996 murders. See Deck I, 994 S.W.2d at 533. Jury selection began about
nineteen months later, on February 18, 1998. The court also noted that although an
opinion poll conducted in November and December 2006 by a St. Louis University
political science professor showed that sixty-nine percent of the 518 surveyed
Jefferson County residents were aware of the case and twenty-seven percent held
an opinion regarding Deck’s guilt, the professor nevertheless conceded that the
passage of time between exposure to publicity and trial would result in fewer
people remembering what they had heard. Id. The Missouri Supreme Court
determined that because the media accounts at issue here occurred long before
trial, there was no “barrage of inflammatory publicity immediately prior to trial”
amounting to a “huge wave of public passion” such that a presumption of prejudice
would attach. Id. at 533-34. This determination is consistent with clearly
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established federal law as determined by the United States Supreme Court. See
Patton, 467 U.S. at 1032-33 (quoting Murphy, 421 U.S. at 798; Irvin, 366 U.S. at
728).
Further, the Missouri Supreme Court noted that the professor’s polling data
did not account for whether those who had opinions would be unable to follow the
law and make a determination based on the evidence adduced at trial, which is the
hallmark for determining the prejudicial effect of pretrial publicity on a jury. The
venire panel on Deck’s case consisted of 120 persons. (See Resp. Exh. D at 218).
The supreme court noted that fifty of those prospective jurors indicated that they
had heard about or read about the case. Thirteen of these fifty stated that they had
formed opinions regarding Deck’s guilt based on the publicity and that it would be
difficult or impossible for them to render a fair and impartial verdict. Twelve of
these thirteen jurors were struck for cause or otherwise excused. With respect to
the thirteenth juror, the supreme court noted that Deck declined to strike her
because she had changed her response by stating that she had not formed an
opinion and could indeed follow the instructions and consider only the evidence at
trial. Deck I, 994 S.W.2d at 533. The mere existence of a preconceived notion as
to the guilt or innocence of an accused is insufficient alone to rebut the
presumption of a prospective juror’s impartiality where the juror can “lay aside his
impression or opinion and render a verdict based on the evidence presented in
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court.” Murphy, 421 U.S. at 800 (quoting Irvin, 366 U.S. at 723). Instead, the
defendant must “demonstrate ‘the actual existence of such an opinion in the mind
of the juror[.]’” Id. (quoting Irvin, 366 U.S. at 723). Deck does not attempt to
demonstrate actual existence of such an opinion here. In short, the evidence shows
that no juror who sat on Deck’s jury had such fixed opinions that they could not
render a fair and impartial verdict in the case.
The Missouri Supreme Court set out the constitutional standard for
determining whether a defendant could receive a fair trial from a jury exposed to
pretrial publicity. Against this standard, the supreme court considered the extent of
the publicity, its timing, and the voir dire process itself and found no indication
that Deck was denied a fair and impartial jury because of publicity. This decision
was well based on law and fact and was not “contrary to, or involved an
unreasonable application of,” clearly established federal law. 28 U.S.C. §
2254(d)(1). Nor has Deck shown that the court’s determination “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)(2).
The claim raised in Ground 2 of the petition will be denied.
B.

Ground 3 – State’s Peremptory Strike of D.G.
In his third ground for relief, Deck claims that the trial court erred by

permitting the State to exercise one of its peremptory challenges in a
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discriminatory manner by striking Juror D.G. because of her gender. Deck
contends that this error deprived him of his right to due process and denied the
members of the venire panel their right to equal protection. Deck raised this claim
on direct appeal, and, upon review of the merits of the claim, the Missouri
Supreme Court denied relief.
At the time Deck’s conviction became final, the law was clearly established
that the Equal Protection Clause of the United States Constitution forbids the
prosecution from using its peremptory challenges to strike potential jurors “solely
on account of their race.” Batson v. Kentucky, 476 U.S. 79, 89 (1986). Under
J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 141-42 (1994), this rule also applies
to peremptory strikes based solely on the potential juror’s gender. As with racebased Batson claims, a party alleging gender discrimination must make a prima
facie showing of intentional discrimination before the party exercising the
challenge is required to explain the basis for the strike. Id. at 144-45 (citing
Batson, 476 U.S. at 97). When such an explanation is required, it must be based on
a juror characteristic other than gender, and it may not be pretextual. Id. at 145
(citing Hernandez v. New York, 500 U.S. 352 (1991)). Under Missouri law, the
defendant bears the burden of proving pretext once a race- and/or gender-neutral
explanation is offered. State v. Parker, 836 S.W.2d 930, 939 (Mo. banc 1992).
“[T]he trial court’s decision on the ultimate question of discriminatory intent
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represents a finding of fact of the sort accorded great deference on appeal[.]”
Hernandez, 500 U.S. at 364 (citing Batson, 476 U.S. at 98 n.21); see also Gibson v.
Bowersox, 78 F.3d 372, 374 (8th Cir. 1996) (citing Jones v. Jones, 938 F.2d 838,
841 (8th Cir. 1991)); Elem v. Purkett, 64 F.3d 1195, 1199 (8th Cir. 1995). This is
so because “evaluation of the prosecutor’s state of mind based on demeanor and
credibility lies ‘peculiarly within a trial judge’s province.’” Hernandez, 500 U.S.
at 365 (quoting Wainwright v. Witt, 469 U.S. 412, 428 (1985)). Findings of fact
made by State appellate courts have the same presumptive correctness as findings
of fact made by State trial courts. Weaver, 241 F.3d at 1031. Factual findings of a
State court are presumed to be correct unless the petitioner shows otherwise by
clear and convincing evidence. 28 U.S.C. § 2254(e)(1); see also Barnett v. Roper,
541 F.3d 804, 812 (8th Cir. 2008).
Here, the State exercised a peremptory strike against Juror D.G., and Deck
argued to the trial court that the strike was based on D.G.’s gender. In response,
the prosecutors averred that they struck D.G. because they considered her to be a
“very weak” juror based on her demeanor and manner of speaking during voir dire
and, further, because D.G.’s relatives had been or were currently being prosecuted
for a criminal offense. Deck I, 994 S.W.2d at 537. Deck raised no argument to the
trial court challenging the prosecutor’s explanation regarding D.G.’s “weakness.”
(See Resp. Exh. E at 539-42.) With respect to D.G.’s relatives, Deck alluded to
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“other jurors” similarly situated to D.G. in this regard, but provided no detailed
argument. (Id. at 542.) The trial court denied Deck’s challenge to the State’s
peremptory strike of D.G. (Id.)
On direct appeal, the Missouri Supreme Court applied the Batson-J.E.B.
standard and determined that Deck failed to show that the State’s reasons to strike
D.G. were merely pretext and that the strike was motivated by D.G.’s gender.
Deck I, 994 S.W.2d at 536-38. Specifically, the court found that “[a]n explanation
based on a prospective juror’s general demeanor, which in this case gave rise to the
perception that [D.G.] was ‘weak,’ is facially non-discriminatory.” Id. at 537.
This reason is indeed a valid non-discriminatory reason to exercise a peremptory
strike, and Deck has provided no clear and convincing evidence to rebut the State
court’s factual finding of no pretext in this regard. See United States v. Maxwell,
473 F.3d 868, 872 (8th Cir. 2007) (juror’s demeanor and body language are
legitimate non-discriminatory reasons to strike potential juror); Weaver v.
Bowersox, 241 F.3d 1024 (8th Cir. 2001) (juror’s words and conduct led
prosecutor to believe she was weak; petitioner failed to rebut presumptive
correctness of state court decision that this reason was non-discriminatory).
The Missouri Supreme Court also found that the fact of an arrest, conviction,
or incarceration of a prospective juror’s relative is likewise a non-discriminatory
reason to exercise to a strike. Deck I, 994 S.W.2d at 537. In his claim, however,
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Deck contends that a male juror also had a relative who had been prosecuted, thus
demonstrating that the State’s strike of D.G. was based on her gender. Assuming
for the sake of argument that this circumstance may give rise to some inference of
discrimination, this inferred discrimination is nevertheless insufficient given the
State’s other nondiscriminatory reason for the use of the peremptory strike, that is,
the perception that the juror was weak based on her demeanor. See Bell-Bey v.
Roper, 499 F.3d 752, 758 (8th Cir. 2007) (citing Weaver, 241 F.3d at 1032)
(denying an application for a writ of habeas corpus based on a Batson challenge
when the state attorney had articulated both discriminatory and nondiscriminatory
reasons for the use of the peremptory strike)).18
The Missouri Supreme Court’s factual finding that the State’s articulated
reason for striking D.G. was gender-neutral and not pretext was not an
unreasonable determination of the facts in light of the evidence presented in the
State court proceedings. See Purkett v. Elem, 514 U.S. 765, 769 (1995); Gibson,
78 F.3d at 374; Jones, 938 F.2d at 843 (state appellate court’s findings of fact
presumed to be correct). As such, Deck has failed to overcome the presumption of
correctness accorded to the State court’s conclusion that the prosecutors did not act

18

Deck argues in the alternative that trial counsel was ineffective for failing to provide details to
the trial court regarding this substantially similar male juror. (See Amd. Petn., ECF #30 at 3334, n.9.) Because the State provided another nondiscriminatory reason to strike Juror D.G., any
failure by counsel to further pursue this argument did not prejudice Deck.
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with discriminatory intent in their strike of D.G. See Boyd v. Groose, 4 F.3d 669,
672 (8th Cir. 1993).
Based on the above, the Missouri Supreme Court’s decision denying relief
on this claim is well based on law and fact. I am unaware of any “clearly
established Federal law, as determined by the Supreme Court of the United States”
of which the court’s decision runs afoul, nor has Deck demonstrated such.
Therefore, it cannot be said that the State court’s adjudication of the instant claim
“resulted in a decision that was contrary to, or involved an unreasonable
application of,” clearly established federal law. 28 U.S.C. § 2254(d)(1). Nor has
Deck shown that the court’s determination “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)(2).
Accordingly, the claim raised in Ground 3 of the petition will be denied.
C.

Ground 4 – Denial of Challenge for Cause of Juror S.A.
Deck sought to strike Juror S.A. for cause, arguing that this juror gave some

indication during voir dire that he might automatically impose the death penalty.
The trial court denied this request, after which Deck exercised a peremptory strike
to remove him. See Deck I, 994 S.W.2d at 538. In Ground 4 of his petition, Deck
claims that the trial court’s refusal to strike S.A. for cause denied him his rights to
due process, to a fair and impartial jury, to reliable sentencing, and to be free from
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cruel and unusual punishment. Deck raised this claim on direct appeal. The
Missouri Supreme Court found that a challenge to a juror’s qualifications is not a
ground to reverse a conviction or judgment “‘unless such juror served upon the
jury at the defendant’s trial and participated in the verdict rendered against the
defendant.’” Id. (quoting Mo. Rev. Stat. § 494.480.4). This decision was not
contrary to or an unreasonable application of clearly established federal law.
A claim that a jury was not impartial must focus on the actual jurors. Ross v.
Oklahoma, 487 U.S. 81, 86 (1988). Although Deck had to use a peremptory strike
to remove S.A., the United States Supreme Court has rejected “the notion that the
loss of a peremptory challenge constitutes a violation of the constitutional right to
an impartial jury.” Id. at 88. “So long as the jury that sits is impartial, the fact that
the defendant had to use a peremptory challenge to achieve that result does not
mean the Sixth Amendment was violated.” Id. S.A. did not sit on Deck’s jury.
Deck’s Sixth Amendment claim that he was denied a fair and impartial jury
therefore fails.
In addition, the rights governing the exercise of peremptory challenges in
State court is determined by State law. See Ross, 487 U.S. at 89.19 “[P]eremptory
challenges are not constitutionally protected fundamental rights; rather, they are
but one state-created means to the constitutional end of an impartial jury and a fair
19

See also Rivera v. Illinois, 556 U.S. 148, 152 (2009).
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trial.” Georgia v. McCollum, 505 U.S. 42, 57 (1992); see also Ross, 487 U.S. at
88. Deck does not claim here that he was denied anything that the State law
allowed him to do. His due process and other constitutional claims therefore fail.
Ross, 487 U.S. at 90-91.
The claim raised in Ground 4 will be denied.
D.

Ground 10 – Assistance of Direct Appeal Counsel
Before trial, Deck moved to disqualify the prosecuting attorney’s office

because of an alleged conflict of interest. Deck argued that the conflict existed
because a current assistant prosecutor in the office previously represented him on a
burglary case in 1993. The trial court heard the motion and denied it. (Resp. Exh.
C at 1-19.) This conflict-of-interest claim was not raised on direct appeal.
In his Rule 29.15 post-conviction motion, Deck claimed that direct appeal
counsel rendered ineffective assistance by failing to raise the conflict-of-interest
issue. The motion court denied the claim. On post-conviction appeal, the Missouri
Supreme Court determined Deck’s underlying conflict-of-interest claim to have no
merit. Citing Missouri law, the supreme court held that
Mr. Deck’s [conflict-of-interest] claim must fail because the earlier
case in which his counsel was associated is not substantially related to
the instant case and there is no claim that any confidential information
was transmitted to the prosecutor in this case or that his former
counsel had involvement in this case.
Deck II, 68 S.W.3d at 431. The supreme court affirmed the motion court’s denial
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of Deck’s related claim of ineffective assistance of appellate counsel. Id. at 43132.
At the time Deck’s conviction became final, the law was clearly established
that the Sixth Amendment guarantees a criminal defendant the right to effective
assistance of counsel, including effective assistance on direct appeal. Strickland,
466 U.S. at 686; Evitts v. Lucey, 469 U.S. 387, 396-97 (1985). The standard set
forth in Strickland must be applied to determine whether Deck indeed received
ineffective assistance of appellate counsel with regard to this issue of error. Reese,
94 F.3d at 1185. Deck must therefore show that counsel’s representation fell
below an “objective standard of reasonableness” and that he was prejudiced as a
result. Strickland, 466 U.S. at 687-88, 694. To demonstrate prejudice on account
of counsel’s failure to raise this claim on appeal, Deck must show a “reasonable
probability that an appeal of [the] issue would have been successful and that the
result of the appeal would thereby have been different.” Pryor v. Norris, 103 F.3d
710, 714 (8th Cir.1997). He must show more than that the alleged error had some
conceivable effect on the outcome of the proceeding. Id. at 713. “‘Virtually every
act or omission of counsel would meet that test, and not every error that
conceivably could have influenced the outcome undermines the reliability of the
result of the proceeding.’” Id. (quoting Strickland, 466 U.S. at 693).
Counsel’s failure to raise a non-meritorious claim on appeal cannot be found
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deficient under Strickland, nor can it result in any prejudice. Burton v. Dormire,
295 F.3d 839, 846 (8th Cir. 2002); Zinzer v. State of Iowa, 60 F. 3d 1296, 1299
(8th Cir. 1995). Because the Missouri Supreme Court determined Deck’s
underlying conflict-of-interest claim to have no merit, its determination to affirm
the denial of his related claim of ineffective assistance of appellate counsel was
neither contrary to nor an unreasonable application of clearly established federal
law. Nor does the record show that the court’s determination 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.
The claim raised in Ground 10 will be denied.
PENALTY PHASE
A.

Ground 11 – Prior Death Sentences Held Unconstitutional
As discussed above, the United States Supreme Court found that Deck was

denied his constitutional right to due process during his second penalty-phase trial
because he was visibly shackled during the trial. Deck contends that because the
previous death sentences were held to be unconstitutional, the trial court was
required under Missouri law to impose life sentences instead of proceeding to a
third penalty-phase trial. He argues that the court’s denial of his motion to impose
such sentences denied him his procedural due process rights by depriving him of a
liberty interest created under State law. Deck raised this due process claim on
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direct appeal of the third penalty-phase trial.
The Missouri Supreme Court denied the claim based on its finding that Deck
was not entitled under Missouri law to the sentencing relief he requested. The
court did not analyze the due process aspect of the claim. This lack of analysis,
however, “does not mean that [Deck] is necessarily entitled to habeas relief[.]”
Huss, 252 F.3d at 956. Instead, I must apply established Supreme Court precedent
to the facts of this case to determine whether Deck is entitled to relief on this due
process claim that was fairly presented to the State court. Id.
Generally, federal habeas relief does not lie for a petitioner challenging the
State court’s application of State law. Estelle v. McGuire, 502 U.S. 62, 67 (1991);
Mullaney v. Wilbur, 421 U.S. 684, 691 (1975). See also Sweet, 125 F.3d at 1151
(“It is not the office of a federal habeas court to determine that a state court made a
mistake of state law.”). When the court’s application is arbitrary and causes the
deprivation of a State-created liberty interest, however, the petitioner’s
constitutional right to due process is implicated. Hicks v. Oklahoma, 447 U.S. 343,
346-47 (1980).
To create a liberty interest enforceable under the Due Process Clause, a State
statute or regulation must place substantive limitations on official discretion.
Kentucky Dep’t of Corrections v. Thompson, 490 U.S. 454, 462 (1989). “[T]he
most common manner in which a State creates a liberty interest is by establishing
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‘substantive predicates’ to govern official decision-making, and, further, by
mandating the outcome to be reached upon a finding that the relevant criteria have
been met.” Id. (citing Hewitt v. Helms, 459 U.S. 460, 472 (1983)). The statute
must “contain ‘explicitly mandatory language,’ i.e., specific directives to the
decisionmaker that if the [statute’s] substantive predicates are present, a particular
outcome must follow[.]” Id. at 463 (citing Hewitt, 459 U.S. at 471-72.)
At issue here is Mo. Rev. Stat. § 565.040.2, which states:
In the event that any death sentence imposed pursuant to this chapter
is held to be unconstitutional, the trial court which previously
sentenced the defendant to death shall cause the defendant to be
brought before the court and shall sentence the defendant to life
imprisonment without eligibility for probation, parole, or release
except by act of the governor, with the exception that when a specific
aggravating circumstance found in a case is held to be inapplicable,
unconstitutional or invalid for another reason, the supreme court of
Missouri is further authorized to remand the case for retrial of the
punishment pursuant to subsection 5 of section 565.035.
The parties here do not dispute that this statute creates a liberty interest given that
it includes a specific directive to the trial court to impose a life sentence once a
specified substantive predicate is met, that is, when a death sentence imposed is
held to be unconstitutional.20 Respondents contend, however, that Deck had no
liberty interest in the exercise of this statute – and thus no due process implication

20

Deck makes no claim that the statute itself failed to provide the procedural safeguards
necessary to provide him notice and an opportunity to be heard. Contra Ford v. Wainwright, 477
U.S. 399, 417 (1986).
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– because, under Missouri law, his circumstances failed to meet the substantive
predicate. Whether Deck met the substantive predicate of § 565.040.2 is a matter
of State law.
In its decision, the Missouri Supreme Court examined the language of the
statute and discussed in depth its previous decision in State v. Whitfield, 107
S.W.3d 253 (Mo. banc 2003), and determined that the substantive predicate of §
565.040.2 included only those instances in which the imposition of the death
sentence itself is unconstitutional, and not instances where a separate, unrelated
trial error is alleged. Deck III, 303 S.W.3d at 533-35. Citing Whitfield, the court
noted that it had “previously indicated that trial error premised on a constitutional
violation not directly affecting the imposition of the death penalty statutory scheme
does not result in the application of section 565.040.” Id. at 533. The court then
examined the circumstance from which the United States Supreme Court found
reversible error in Deck’s case – that is, his visible shackling during trial – and
found it to be trial error and unrelated to the imposition of the death sentence itself.
Because the death sentence itself was not found to be unconstitutional, the
Missouri Supreme Court determined that § 565.040.2 was not implicated in Deck’s
case. Deck III, 303 S.W.3d at 535.
As a federal habeas court, I have no authority to second guess the Missouri
court’s substantive determination that Deck failed to meet the requirements of its
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own State law. See Ford v. Wainwright, 477 U.S. 399, 430-31 (1986) (O’Connor,
J., dissenting in part); Arnold v. Dormire, 675 F.3d 1082, 1086 (8th Cir. 2012)
(citing Bounds v. Delo, 151 F.3d 1116, 1118 (8th Cir. 1998)). See also Buchalter
v. People of State of New York, 319 U.S. 427, 431 (1943). Nor has Deck shown
that the Missouri Supreme Court arbitrarily applied State law to his case. Indeed,
the contrary is true.
The Missouri Supreme Court determined, as a matter of State law, that
Deck’s circumstances did not meet the substantive predicate necessary to invoke
the mandatory imposition of a life sentence under § 565.040.2. Although §
565.040.2 creates a liberty interest under the standard set forth in Thompson, this
interest does not attach in the circumstances of this case. In the absence of this
claimed protected liberty interest, Deck’s due process claim must fail. See
Paul v. Davis, 424 U.S. 693, 712 (1976) (respondent cannot assert denial of any
right vouchsafed to him by the State and thereby protected under Fourteenth
Amendment; respondent therefore not deprived of any liberty or property interests
protected by Due Process Clause); Singleton v. Cecil, 176 F.3d 419, 424 (8th Cir.
1999) (“the possession of a protected life, liberty, or property interest is . . . a
condition precedent to any due process claim.”) (internal quotation marks omitted).
Based on the foregoing, I find that the decision of the Missouri Supreme
Court in denying Deck relief on this due process claim is not substantially different
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from what the decision would have been if that court had addressed the federal
aspect of the claim in accordance with established precedent of the United States
Supreme Court. The claim raised in Ground 11 of the instant petition will
therefore be denied.
B.

Ground 12 – Striking of Qualified Jurors
In his twelfth ground for relief, Deck contends that he was denied due

process, his right to a fair and impartial jury, and freedom from cruel and unusual
punishment when the trial court improperly struck two qualified jurors for cause
based on their reluctance to serve as foreperson. Deck raised this claim on direct
appeal. Upon review of the merits of the claim, the Missouri Supreme Court
denied relief.
At the time Deck’s conviction became final, the law was clearly established
that prospective jurors may be removed for cause if their views on capital
punishment would prevent or substantially impair their ability to fully and fairly
consider all possible punishments. Wainwright, 469 U.S. at 420. The bias against
the death penalty need not be evident with unmistakable clarity because such
clarity is rarely evident; instead, the matter is one that is “peculiarly” within the
trial judge’s province. Kinder v. Bowersox, 272 F.3d 532, 543 (8th Cir. 2001); see
also Uttecht v. Brown, 551 U.S. 1, 22 (2007). Because the trial court’s judgment is
based in part on the demeanor of the juror, its judgment is entitled to deference by
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a reviewing court. Uttecht, 551 U.S. at 9; Wainwright, 469 U.S. at 428.
In its review of Deck’s claim, the Missouri Supreme Court summarized that
portion of the voir dire examination that showed Jurors M.C. and B.L. to indicate
that they could consider both possible sentences in the case – that is, life
imprisonment and the death penalty – but that they could not sign a verdict form
imposing death. Deck III, 303 S.W.3d at 536-37. Identifying the clearly
established federal law set out above, id. at 535-36, the supreme court accorded
deference to the trial court and determined the facts to support that court’s decision
to strike these jurors for cause:
In this case, it is not just the simple refusal to sign the verdict
that may warrant removal. Where, as here, if a veniremember claims
on the one hand that he or she could fairly consider both punishments
but, at the same time, unequivocally states that he or she would not
sign a verdict of death, the trial court is in the best position to consider
whether the record contains sufficient evidence of equivocation
creating a doubt as to whether that veniremember would be able to
fairly consider both punishments. Here, the veniremembers’
responses revealed an inability to follow the court’s instructions if that
person were chosen as foreman of the jury and the trial court could
have concluded from the record as a whole that there was a substantial
possibility that the veniremember may not be able to fairly consider
both punishments despite their assurances to the contrary.
Id. at 538.
The Missouri Supreme Court’s determination to affirm the trial court’s
decision to strike Jurors M.C. and B.L. is based on reasonable factual findings and
application of clearly established federal law. Deck is therefore not entitled to
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habeas relief on this claim of trial court error, and the claim raised in Ground 12 of
the instant petition will be denied.
C.

Ground 13 – Sentence Imposed for Unpled Offense
In order for the death penalty to be imposed under Missouri law for first

degree murder, the jury must find beyond a reasonable doubt the existence of at
least one statutory aggravating circumstance. Without a finding of aggravated
circumstance(s), the only authorized punishment for first degree murder is life
imprisonment. In Ground 13, Deck contends that because a finding of an
aggravated circumstance is required in order to increase the maximum penalty
from life imprisonment to death, such circumstance(s) must be pled in the charging
document. Deck argues that the Information under which he was charged and
convicted here failed to include any aggravating circumstances and thus that he
was unconstitutionally sentenced to death for a crime that was never pled. Deck
raised this claim on direct appeal. Upon review of the merits of the claim, the
Missouri Supreme Court denied relief.
At the time Deck’s conviction became final, the law was clearly established
that any fact that increases the penalty for a crime beyond the prescribed statutory
maximum, other than the fact of a prior conviction, must be submitted to a jury and
proved beyond a reasonable doubt. Apprendi v. New Jersey, 530 U.S. 466, 490
(2000). In Ring v. Arizona, the Supreme Court extended Apprendi to the fact- 103 -

finding necessary for imposition of the death penalty. Ring, 536 U.S. 584, 609
(2002). Deck does not contend that the jury failed to find beyond a reasonable
doubt the aggravating circumstances required in order to make him “deatheligible” in this case. Nor does he claim that he was not given reasonable notice of
the aggravating factors the State sought to prove. Instead, Deck contends only that
the Information failed to plead such aggravating factors, thus rendering his
sentence unconstitutional. To the extent he argues that Apprendi and Ring require
that aggravating factors be pled in a charging document, this argument
misinterprets the law.
In Apprendi, the Supreme Court made it clear that the Fifth Amendment to
the United States Constitution provides the source for the requirement that facts
increasing a maximum penalty must be pled in the indictment. Indeed, the
Apprendi Court specifically noted that it was not addressing the question of
whether the Fourteenth Amendment requires the States to include sentence
enhancements in the charging document and alluded to there not being such a
requirement. Apprendi, 530 U.S. at 477 n.3 (Fourteenth Amendment “has not . . .
been construed to include the Fifth Amendment right to ‘presentment or indictment
of a Grand Jury[.]’”). Although the Ring Court likewise did not address this
question given that it was not raised, it nevertheless noted the Apprendi Court’s
recognition that the Fourteenth Amendment did not apply to such claims. Ring,
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536 U.S. at 597 n.4. Accordingly, both Apprendi and Ring express doubt that the
Fifth Amendment’s guarantee of a right to be indicted by a Grand Jury is
applicable to State prosecutions, as that protection has not been understood to be
incorporated by the Fourteenth Amendment. To find otherwise would run contrary
to the Supreme Court’s repeated assertion that the Grand Jury Clause of the Fifth
Amendment does not apply to the States.
Deck also argues that Missouri’s statutory scheme creates two separate
crimes of first-degree murder – that is, “unenhanced” first-degree murder, carrying
a maximum sentence of life without probation or parole; and “aggravated” firstdegree murder, requiring an additional element of at least one statutory aggravator
and which carries the maximum sentence of death. Deck contends that the failure
to include any statutory aggravators in the Information necessarily resulted in him
being charged with only “unenhanced” first-degree murder, and thus that his death
sentence for aggravated first-degree murder – an uncharged crime – violated his
constitutional rights.
In rejecting this claim, the Missouri Supreme Court relied on long-standing
State court precedent and reaffirmed its previous holdings that the relevant
Missouri statute defines a single offense of first-degree murder with the maximum
sentence of death. Therefore, because imposition of the death penalty does not
have the effect of increasing the maximum penalty for first degree murder, the
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statutory aggravating factors are not required to be pled in the charging document.
Deck III, 303 S.W.3d at 549-50. I may not reevaluate the Missouri Supreme
Court’s interpretation of its own State’s law.
Simply stated, Deck seeks constitutional protection for a right not extended
by the United States Constitution nor established by the United States Supreme
Court. Because the Supreme Court has given “no clear answer to the question
presented, . . . it cannot be said that the state court unreasonably applied clearly
established Federal law.” Wright v. Van Patten, 552 U.S. 120, 126 (2008) (internal
citations, quotation marks, and alterations omitted). “Under the explicit terms of §
2254(d)(1), therefore, relief is unauthorized.” Id. It was not an unreasonable
application of clearly established federal law for the State court here not to apply a
specific legal rule that has not been squarely established by the Supreme Court.
Deck’s attempt to apply such a rule through the claim raised in Ground 13 must
fail.
Ground 13 of the petition will be denied.
D.

Ground 14 – Prosecutor’s Closing Argument
In his fourteenth ground for relief, Deck claims that he was denied due

process, his right to a fair and impartial jury, and his right to fair and reliable
sentencing when the prosecutor made improper statements during his closing
argument. Deck raised this claim on direct appeal. Although he specifically
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challenged four areas of argument made by the prosecutor, the challenge to only
one argument was preserved for appeal – that the prosecutor improperly
personalized the argument – which the Missouri Supreme Court denied on its
merits.21 I look to the merits of that claim here.
In determining whether the prosecutor’s closing argument violated Deck’s
constitutional rights, the pertinent inquiry is “whether the prosecutors’ comments
‘so infected the trial with unfairness as to make the resulting conviction a denial of
due process.’” Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting
Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). The test applied to
determine whether error makes a trial fundamentally unfair is whether there is a
reasonable probability that the verdict might have been different had the error not
occurred. Lisenba v. California, 314 U.S. 219, 236 (1941); Hamilton v. Nix, 809
F.2d 463, 470 (8th Cir. 1987). I may grant Deck habeas relief only if “the
prosecutor’s closing argument was so inflammatory and so outrageous that any
reasonable trial judge would have sua sponte declared a mistrial.” James v.
Bowersox, 187 F.3d 866, 869 (8th Cir. 1999). With “the strict due process
standard of constitutional review, the deferential review mandated by the AEDPA,
and [this Court’s] less reliable vantage point for gauging the impact of closing
21

The Missouri Supreme Court reviewed the other three challenges for plain error and found
none. As discussed at Part VI.A.1, above, these three challenges to the prosecutor’s closing
argument are procedurally barred from federal habeas review and will not be addressed here.
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argument on the overall fairness of a trial,” my review of whether the prosecutor’s
closing argument violated Deck’s right to due process is “exceptionally limited.”
Id.; see also Sublett v. Dormire, 217 F.3d 598, 600 (8th Cir. 2000).
In this claim, Deck contends that the prosecutor’s following statements
during closing argument constituted improper personalization:
[STATE]: The last thing I’m gonna tell you and say to you is this: I –
I’ve done this job long enough, and this isn’t about me – but I’ve done
this long enough that on occasion, five years after a case like this has
gone –
[DEFENSE]: Objection; vouching, personalization.
[COURT]: Sustained.
[STATE]: Often times, I’ll get a phone call later on from a family
member, and they’ll say –
[DEFENSE]: Objection; relevance, same objection.
[COURT]: Overruled.
[STATE]: And they’ll say to me, to my granddaughter, I’ve told them
about my loved one that was murdered. They want – they want to
know what happened. Can you explain it to them. There are 19
grandchildren. 19 great-grandchildren, and I don’t know how many
more there’ll be. And some day these people are going to be told
about James and Zelma Long. And they’re gonna be told about what
wonderful parents they were, how they liked to fish. How their
Grandmother got her masters and taught. They’re gonna be told about
these wonderful people. And you know the question they’re gonna
ask, is they’re gonna say well, where are they now? They’re gonna
have to be told about this. And then they’re gonna ask another
question, and that question I get to some – unfortunately sometimes
explain is was justice done? When you go up there, you’ll tell us if
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justice is done. Now I’m gonna sit down and wait for your answer, so
I can tell them.
Deck III, 303 S.W.3d at 540. Referring to the clearly established law set out
above, the Missouri Supreme Court found the challenged statements not to rise to
the level of improper personalization and thus that there was no merit to Deck’s
argument. Id.
Improper personalization occurs when the closing argument asks the jury to
place themselves in the place of a party or victim, or suggests personal danger to
the jurors or their families if the defendant were to be acquitted. Hall v. State, 16
S.W.3d 582, 585 (Mo. banc 2000); West v. State, 244 S.W.3d 198, 201 (Mo. Ct.
App. 2008). As noted by the Missouri Supreme Court here, the part of the
argument challenged by Deck “did not imply any danger to the jurors or ask the
jurors to place themselves in the victims’ shoes.” Deck III, 303 S.W.3d at 540.
Accordingly, as found by the supreme court, no improper personalization occurred.
Even if the statements were improper, they were not so outrageous to render
Deck’s trial fundamentally unfair. They did not mischaracterize the evidence or
implicate any other of Deck’s specific rights. Further, when coupled with the
court’s instruction to the jury that closing arguments are not evidence and the
“jury’s ‘common sense ability to put aside a particular type of overzealous
advocacy,’” it cannot be said that these statements so infected the trial with
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unfairness that a reasonable probability exists that the verdict might have been
different had the error not occurred. Lisenba, 314 U.S. at 236; Sublett, 217 F.3d at
601 (quoting James, 187 F.3d at 870). Accordingly, under Darden and Lisenba,
the Missouri Supreme Court’s findings were not contrary to clearly established
federal law. Accordingly, this claim raised in Ground 14 will be denied.
E.

Ground 16 – Burden of Proof on Mitigating Evidence
In his sixteenth ground for relief, Deck contends that Instructions 8 and 13

given to the jury impermissibly shifted to him the burden of proof regarding
mitigating evidence, thereby denying him due process and his rights to a fair jury
trial and reliable sentencing. Deck raised this claim on direct appeal. Upon review
of the merits of the claim, the Missouri Supreme Court denied relief.
In Kansas v. Marsh, 548 U.S. 163 (2006), the United States Supreme Court
stated:
So long as a State’s method of allocating the burdens of proof does
not lessen the State’s burden to prove every element of the offense
charged, or in this case to prove the existence of aggravating
circumstances, a defendant’s constitutional rights are not violated by
placing on him the burden of proving mitigating circumstances
sufficiently substantial to call for leniency.
Id. at 170-71. In its decision denying Deck’s current claim, the Missouri Supreme
Court noted that it had previously determined that the instructions at issue did not
run afoul of Marsh and that Deck offered no meritorious reason for it to hold
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otherwise:
The instructions given were patterned after MAI–CR 3d 313.44A and
explained to the jurors if they found the facts and circumstances in
aggravation of punishment taken as a whole warrant a death sentence,
they must then determine if there were facts or circumstances in
mitigation of punishment that were sufficient to outweigh those in
aggravation of punishment. The instruction then explains to the jurors
that they did not have to agree on mitigating facts, but that if each
juror determined that the mitigating evidence outweighs the
aggravating evidence, the jury must return a sentence of life without
parole.
Deck III, 303 S.W.3d at 548. The jury was also instructed that “the burden is on
the State to prove statutory aggravating circumstances beyond a reasonable doubt”
and that if the jury “had determined that one or more aggravating circumstances
existed, it was next to consider whether the facts and circumstances in aggravation
of punishment taken as a whole were sufficient to warrant imposing a sentence of
death.” Id. at 549. Instructions must be viewed as a whole rather than in artificial
isolation. Boyde v. California, 494 U.S. 370, 378 (1990); Middleton v. Roper, 498
F.3d 812, 818 (8th Cir. 2007).
In light of the other instructions to the jury establishing the State’s burden to
prove the existence of aggravating circumstances beyond a reasonable doubt, and
nothing indicating that the State’s burden of proof was less, the state supreme
court’s determination that the trial court did not err in giving Instructions 8 and 13
regarding mitigating evidence was not contrary to nor an unreasonable application
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of Supreme Court precedent. Nor has Deck demonstrated that the state supreme
court’s decision was based on an unreasonable determination of the facts in light of
the evidence presented in the State court proceeding.
The claim raised in Ground 16 of the petition will be denied.
F.

Ground 17 – Proportionality Review
A criminal defendant has a liberty interest in being sentenced under the

proper standard under State law and, in Missouri, to have the Missouri Supreme
Court conduct a proportionality review of any death sentence as provided under
Mo. Rev. Stat. § 565.035. Cf. Rust v. Hopkins, 984 F.2d 1486, 1492-93 (8th Cir.
1993) (citing Hicks v. Oklahoma, 447 U.S. 343 (1980)). While there is no federal
constitutional right to a proportionality review, Pulley v. Harris, 465 U.S. 37
(1984), “once in place it must be conducted consistently with the Due Process
Clause.” Kilgore v. Bowersox, 124 F.3d 985, 995 (8th Cir. 1997). What
constitutes a proper proportionality review under the Missouri statute, however, is
a matter of State law; whether the State court properly interpreted the State statute
is not a matter I can determine in this federal habeas action. Estelle, 502 U.S. at
67-68; Sweet, 125 F.3d at 1159.
Here, the Missouri Supreme Court conducted a proportionality review of
Deck’s death sentence under Mo. Rev. Stat. § 565.035.3(3), which requires that
court to determine “[w]hether the sentence of death is excessive or
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disproportionate to the penalty imposed in similar cases, considering both the
crime, the strength of the evidence and the defendant.” See Deck III, 303 S.W.3d
at 550-53. In doing so, the supreme court considered previous cases in which a
death sentence was imposed, id. at 552, rejecting Deck’s argument that it must also
consider factually similar cases that did not result in a death sentence. Id. at 551.
The supreme court’s rationale in this regard was based on established Missouri law
as it existed at the time of Deck’s sentence and appeal. Id. at 551-52.
In cases decided after Deck III, the Missouri Supreme Court held that the
law with regard to proportionality review required consideration of death cases and
cases that resulted in life imprisonment. See State v. Davis, 318 S.W.3d 618, 645
(Mo. banc 2010); State v. Dorsey, 318 S.W.3d 648, 659 (Mo. banc 2010). In State
v. Nunley, 341 S.W.3d 611 (Mo. banc 2011), the supreme court specifically held
that this new construction of the State statute was not to be applied retroactively.
Id. at 624. In circumstances such as Deck’s, therefore, proportionality reviews that
considered only cases that resulted in a death sentence were left undisturbed.
Deck argues here that the Missouri Supreme Court’s failure to conduct a
proportionality review that included consideration of similar cases resulting in a
life sentence violated his right to due process and, further, that the failure of the
supreme court to retroactively apply the new proportionality rule announced in
Davis and Dorsey permits his death sentence to stand in contravention of the law,
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which likewise deprives him of due process. Both claims fail.
First, challenges to the manner in which proportionality review was
conducted or to the State court’s interpretation of § 565.035 are beyond the scope
of habeas review. Kilgore, 124 F.3d at 996; Sweet, 125 F.3d at 1159; LaRette, 44
F.3d 681, 688 (8th Cir. 1995); Foster v. Delo, 39 F.3d 873, 882 (8th Cir. 1994);
Murray v. Delo, 34 F.3d 1367, 1377 (8th Cir. 1994). Where the Missouri Supreme
Court addressed and decided the proportionality issue in its opinion, the
Constitution does not require me “to look behind [the State court’s proportionality]
conclusion to consider the manner in which the court conducted its review or
whether the court misinterpreted the Missouri statute.” Sweet, 125 F.3d at 1158
(citing Walton v. Arizona, 497 U.S. 639, 656 (1990)); see also Tokar v. Bowersox,
198 F.3d 1039, 1051 (8th Cir.1999); Ramsey v. Bowersox, 149 F.3d 749, 754 (8th
Cir.1998); Zeitvogel v. Delo, 84 F.3d 276, 283 (8th Cir.1996). In this case, the
Missouri Supreme Court performed its proportionality review, citing cases to
which it compared Deck’s and found that his death sentence was not
disproportionate. Therefore, I may not further review Deck’s proportionality
claim. Middleton, 498 F.3d at 821-22; Foster, 39 F.3d at 882; Basile v. Bowersox,
125 F. Supp. 2d 930, 976 (E.D. Mo. 1999); Tokar v. Bowersox, 1 F. Supp. 2d 986,
1012 (E.D. Mo. 1998).
To the extent Deck argues that the failure of the Missouri Supreme Court to
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retroactively apply a new rule of law regarding proportionality review deprives
him of his right to due process, the Eighth Circuit squarely rejected this argument
in Clay v. Bowersox, 628 F.3d 996 (8th Cir. 2011):
The Supreme Court in Wainwright v. Stone, 414 U.S. 21 (1973) (per
curiam), held that a state supreme court is not constitutionally
compelled to make retroactive its new construction of a state statute,
id. at 23-24, explaining that “‘[a] state in defining the limits of
adherence to precedent may make a choice for itself between the
principle of forward operation and that of relation backward. It may
say that decisions of its highest court, though later overruled, are law
none the less for intermediate transactions.’” Id. at 24 (quoting Great
N. Ry. Co. v. Sunburst Oil & Ref. Co., 287 U.S. 358, 364 (1932)). . . .
Clay therefore has not made a substantial showing that the decision of
the Supreme Court of Missouri to apply its new construction of Mo.
Rev. Stat. § 565.035.3 prospectively only is an unreasonable
application of clearly established federal law, as determined by the
Supreme Court of the United States.
Id. at 998 (internal parallel citations omitted).
Accordingly, the claim raised in Ground 17 of the petition will be denied.
G.

Ground 18 – Assistance of Trial Counsel / Jury Selection
Deck contends that he received ineffective assistance of trial counsel when

counsel failed to inquire of prospective jurors whether they were willing to
meaningfully consider mitigation evidence of childhood experience proffered by
the defense. Deck raised this claim in his motion for post-conviction relief and on
appeal of the denial of the motion. Applying the familiar Strickland analysis, the
Missouri Supreme Court found that counsel’s performance was not deficient and
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thus that Deck did not receive ineffective assistance of counsel. For the following
reasons, this decision was neither contrary to nor an unreasonable application of
established Supreme Court precedent. Nor was it based on an unreasonable
determination of the facts in light of the evidence presented.
Deck complains that trial counsel failed to adequately examine the potential
for juror bias by failing to ask the venire whether they could look at his childhood
experience and give it meaningful consideration as a reason to vote against the
death penalty. In reviewing this claim, the Missouri Supreme Court found that a
question asking potential jurors whether they could consider this evidence “as a
reason to vote against the death penalty” effectively asks the venire to commit to
the weight they would give certain mitigating evidence before actually hearing it.
Deck IV, 381 S.W.3d at 344-45. After thoroughly setting out Supreme Court
precedent establishing what evidence a juror must consider when determining
whether to impose the death penalty,22 the court determined that asking potential
jurors how certain evidence would affect their decision would be improper. Id.
This determination was reasonable. See, e.g., United States v. McVeigh, 153 F.3d
1166, 1207 (10th Cir. 1998)23 (improper to ask jurors to speculate or precommit on

22

See Deck IV, 381 S.W.3d at 344 (citing Morgan v. Illinois, 504 U.S. 719 (1992); Eddings v.
Oklahoma, 455 U.S. 104, 113-14 (1982); Woodson v. North Carolina, 428 U.S. 280, 304 (1976);
Lockett v. Ohio, 438 U.S. 586, 604 (1978)).
23

Overruled in part on other grounds by Hooks v. Ward, 184 F.3d 1206 (10th Cir. 1999).
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how they might vote based on any particular facts) (citing Morgan v. Illinois, 504
U.S. 719 (1992)).
The Missouri Supreme Court further found that, to the extent Deck was
concerned about potential juror bias against the introduction of childhood evidence
generally, the issue was adequately explored by the prosecutor whose question did
not ask the jurors to commit to the weight they would accord such evidence:
And I guess the question I want to ask you is that you’ll hear – I
anticipate you’ll hear some evidence concerning [Movant]’s
childhood, his upbringing.
Is there anybody here, that if you start hearing evidence about
troubled childhoods, things like that, it’s going to [a]ffect your ability
to be fair in this case, one way or the other?
Deck IV, 381 S.W.3d at 345 (alteration in Deck IV).
Given that the matter of potential juror bias on the basis of childhood
evidence was adequately explored during voir dire through the questions posed by
the prosecutor, and that the question proffered by Deck would have improperly
asked the venire members to commit to the weight given such evidence, the State
court found that the failure of trial counsel to pose this improper question did not
render their performance deficient. Deck IV, 381 S.W.3d at 345. This is not an
unreasonable application of nor contrary to established Supreme Court precedent.
Further, absent evidence that a biased juror was actually seated, a claim that
counsel was ineffective during voir dire necessarily fails. See Sanders v. Norris,
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529 F.3d 787 (8th Cir. 2008); Singleton v. Lockhart, 871 F.2d 1395, 1400 (8th Cir.
1989) (citing Strickland, 466 U.S. at 694).
Deck argues that the Missouri Supreme Court unreasonably determined the
facts as they applied to his claim because the question he proffered that trial
counsel should have posed to the venire panel did not require the jurors to agree
not to vote against the death penalty because of childhood experiences, but only
that they consider evidence of such experiences. This argument is belied by the
record. In both his post-conviction motion and on appeal of its denial, Deck
argued that his trial counsel should have asked the venire if they could give
meaningful consideration to Deck’s childhood experience “as a reason to vote
against the death penalty.” (See Resp. Exh. QQ at 92; Exh. VV at 39.) The
Missouri Supreme Court’s determination that this question would have required
jurors to commit to how they would consider certain evidence is not an
unreasonable interpretation of the question as it was proffered by post-conviction
counsel. Deck’s contention otherwise is without.
The claim raised in Ground 18 will be denied.
H.

Ground 19 – Assistance of Trial Counsel / Mitigation Witnesses
In this ground for relief, Deck claims that trial counsel was ineffective for

failing to investigate and present testimony at trial from numerous witnesses, and
specifically, Latisha Deck, Rita Deck, Elvina Deck, Michael Johnson, Stacy- 118 -

Tesreau-Bryant, Wilma Laird, Carol Miserocchi, Arturo Miserocchi, Tonia
Cummings, and David L. Hood.24 Deck raised this claim in his post-conviction
motion and on appeal of the denial of the motion. The Missouri Supreme Court
addressed the merits of the claim and denied relief.
As summarized above, Deck underwent a third penalty-phase trial in
September 2008 upon remand from the United States Supreme Court. At this trial,
counsel presented live testimony from a child development expert and from a
psychiatrist, as well as the videotaped depositions of Mike Deck and Mary Banks,
and the transcribed depositions of Major Puckett and Beverly Dulinski. See Deck
IV, 381 S.W.3d at 346-49. The experts testified to their opinions that Deck
“suffered an ‘extreme case of a horrendous childhood’ because he moved 22 times
in 21 years, along with the abuse, neglect, and lack of guidance”; and “that
[Deck’s] childhood was similar to one of the ‘most extreme cases of child abuse
ever described.’” Id. at 348.
At the post-conviction hearing, trial counsel testified to their preparation,
investigation, and strategies leading up to and during the third penalty-phase trial.
Specifically, counsel testified that they talked to a lot of people during their
investigation, which was much like finding “needles in haystacks” (Resp. Exh. UU

24

As discussed above at Part VI.C.1, this claim is procedurally defaulted to the extent it contends
that Ed Kemp should have been called to testify.
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at 136-37, 245), and that they determined not to call witnesses who would provide
only cumulative evidence or who now appeared to be hostile to the defense.
Counsel also testified that some witnesses were no longer available to testify or
could not be located. In addition, counsel expressed concern that some family
members appeared to be more concerned about making themselves look good
rather than testifying to Deck’s bad childhood. (See generally id. at 113-46, 17894, 241-53.) Counsel therefore made the decision that evidence of Deck’s abusive
and neglect-filled childhood would come in through the testimony of expert
witnesses. (Id. at 247-48.)
Against this backdrop, I now turn to the specific witnesses Deck claims
counsel should have called to testify at his final penalty-phase trial.
Latisha Deck, Elvina Deck, Wilma Laird, and Rita Deck
The Missouri Supreme Court examined counsel’s reasons for not presenting
live testimony from these witnesses, including that they would have provided only
cumulative testimony, were uncooperative, could not be located, were of
questionable competence, or would have undermined counsel’s strategy to
emphasize that Deck was a victim of horrible parenting. The court then
determined that counsel’s resulting decision “to tell the story of [Deck’s] childhood
through experts rather than presenting a piecemeal picture of his childhood”
through this live witness testimony was an exercise of reasonable trial strategy
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from which Deck was not prejudiced. Deck IV, 381 S.W.3d at 349-52.
A presumption exists that counsel’s conduct “might be considered sound
trial strategy.” Strickland, 466 U.S. at 688. “[A] reasoned decision not to call a
witness is a virtually unchallengeable decision of trial strategy.” Rodela-Aguilar,
596 F.3d at 464 (internal citation and quotation marks omitted). As stated by the
Missouri Supreme Court, counsel’s decision not to call these witnesses was wellreasoned and a matter of sound trial strategy, thereby defeating Deck’s claim that
counsel rendered ineffective assistance in this regard. See Winfield, 460 F.3d at
1034 (failure to present cumulative evidence does not result in prejudice sufficient
to give rise to a claim of ineffective assistance of counsel; Walls, 151 F.3d at 834
(not ineffective assistance in failing to call family members to testify when such
testimony would have revealed their total lack of support). This decision is based
on reasonable factual findings and application of clearly established federal law.
Deck is therefore not entitled to habeas relief with respect to these uncalled
witnesses.
Tonia Cummings
The Missouri Supreme Court found counsel’s decision not to call Tonia
Cummings as a witness to likewise be a matter of reasonable trial strategy. In
addition to finding that Ms. Cummings’ testimony would have been cumulative to
some extent, the court found it reasonable that counsel did not want to put Deck’s
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codefendant on the stand “because counsel did not want to allow the prosecution to
cross-examine her about the murders. Also, counsel was concerned that Tonia
may be viewed as an additional victim because she was in prison for the crimes
that she committed with [Deck].” Deck IV, 381 S.W.3d at 353.
“A fair assessment of attorney performance requires that every effort be
made to eliminate the distorting effects of hindsight, to reconstruct the
circumstances of counsel’s challenged conduct, and to evaluate the conduct from
counsel’s perspective at the time.” Strickland, 466 U.S. at 689. “The decision not
to call a witness is a ‘virtually unchallengeable’ decision of trial strategy[.]”
United States v. Staples, 410 F.3d 484, 488 (8th Cir. 2005) (citations omitted); see
also Bowman v. Gammon, 85 F.3d 1339, 1345 (8th Cir. 1996) (noting that under
Strickland, “decisions related to trial strategy are virtually unchallengeable”).
Counsel’s strategy to not call Tonia Cummings was reasonable given the concern
that her testimony might refocus the jurors’ attention on the nature of the crimes
themselves rather than portraying Deck in a way such that the jurors might spare
his life. Deck has failed to overcome the presumption that, under the
circumstances, counsel’s challenged action could be considered sound trial
strategy.
The Missouri Supreme Court’s denial of this claim with respect to counsel’s
failure to call Tonia Cummings was not the result of an unreasonable
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determination of the facts or contrary to clearly established federal law. Deck is
not entitled to habeas relief with respect to this uncalled witness.
Michael Johnson, the Miserocchis, and D.L. Hood
Depositions taken in 2011 of the Miserocchis were admitted into evidence at
the post-conviction motion hearing (Resp. Exh. TT at 38), and the post-conviction
motion court summarized testimony therefrom:
Mr. Miserocchi testified that lawyers did contact him three
times on behalf of [Deck]. Mr. Miserocchi testified he did not want to
come to court and has a certain level of sympathy for [Deck’s]
victims.
Mrs. Miserocchi testified that she did not work outside the
home and was responsible for supervising the foster children who
stayed with her. She testified that [Deck] did not want to be in foster
care and wanted to be back with his family. Mrs. Miserocchi did not
remember any family member coming to visit [Deck]. [Deck] did
speak about wanting to go home to his father. [Deck] never got close
to the Miserocchi’s.
Mrs. Miserocchi also indicated an unwillingness to have
testified at trial. She testified that Mr. Deck was reported to have
acted sexually inappropriate and that [Deck] was not liked by the
other children because he was “mouthy” and had a “smart mouth.”
(Resp. Exh. RR at 288-89.) Trial counsel testified at the post-conviction hearing
that they determined not to call the Miserocchis to testify at the third penalty-phase
trial because the testimony they provided at earlier post-conviction hearings was
tangential and the information could be better conveyed through the experts’
testimony. (Resp. Exh. UU at 129.)
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Michael Johnson testified at the post-conviction hearing that he was the son
of Deck’s stepmother, Marietta Deck, and lived with Deck and his siblings for one
year when Deck was about eleven or twelve years old. Johnson testified to the
neglect he and the Deck children experienced while living with Marietta and
Deck’s father, the physical abuse inflicted by Marietta, and verbal abuse from
Johnson’s grandfather during this time. Johnson also testified that the Deck
children kept to themselves. Johnson testified that he would have been available to
provide this testimony at the penalty-phase trial if he had been called. (Resp. Exh.
RR at 98-107.) Trial counsel testified at the post-conviction hearing that they had
no memory of any attempt to contact Mr. Johnson and likewise had no memory of
whether they did or did not want to call him to testify at the penalty-phase trial.
(Id. at 136-38.)
Finally, D.L. Hood – who was Kathy Deck’s former boyfriend – provided
deposition testimony that Kathy was crazy and had tried to stab Hood one night.
Hood also testified that Kathy was promiscuous and that she had told him that she
had taken her children to the welfare office and left them on the steps. Deck IV,
381 S.W.3d at 349. Trial counsel testified at the post-conviction motion hearing
that they decided not to call D.L. Hood because his testimony was tangential and
because he was not in Deck’s life for that long a period of time. (Resp. Exh. RR at
296.)
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In ruling on Deck’s claims regarding these proffered witnesses, the postconviction motion court found generally that the proposed testimony proffered by
counsel was presented to the jury through the testimony of the experts and that the
additional testimony was not compelling. With respect to Michael Johnson and the
Miserocchis specifically, the court found that their proposed testimony was
inconsequential. (Resp. Exh. RR at 302-03.)
The Missouri Supreme Court addressed the substance of the proposed
testimony from these witnesses and found that the “testimony was so lacking in
substance that it would not have had an impact on the jury in their decision.” Deck
IV, 381 S.W.3d at 349. “Movant failed to show that, had the additional mitigating
witnesses been called to testify, their testimony would have outweighed the
aggravating evidence so that there was a reasonable probability the jury would
have voted for life.” Id. Given that the proposed testimony “would not have been
compelling,” the supreme court found that the post-conviction motion court did not
err in denying Deck’s claim regarding counsel’s failure to call these witnesses. Id.
This finding that Deck was not prejudiced by counsel’s failure to call these
witnesses is not contrary to nor an unreasonable application of clearly established
federal law. Nor is it based upon an unreasonable determination of facts presented
in the State court proceedings. The proffered testimony of the Miserocchis,
Johnson, and Hood was cumulative to the expert testimony and deposition
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testimony presented to the jury. This evidence “would barely have altered the
sentencing profile presented[.]” Strickland, 466 U.S. at 699-700. Further, the
proffered testimony would have been elicited from persons who had relationships
with Deck for relatively short periods of time. In addition, some of the testimony
that may have been adduced might have been harmful to Deck’s case, especially
that from the Miserocchis indicating that they felt sorry for Deck’s victims and that
Deck displayed inappropriate behavior toward their children.
Because Deck has failed to make the required showing that he was
prejudiced by counsel’s failure to call these witnesses at his third penalty-phase
trial, his claim of ineffective assistance of counsel fails with regard to these
witnesses. Strickland, 466 U.S. at 700.
Stacey Tesreau-Bryant
At the post-conviction hearing, Stacey Tesreau-Bryant testified that she
previously had a relationship with Deck during which time he became close with
her son. Bryant testified that Deck shared with her that he had been molested by
his mother’s boyfriends while he was growing up and had been raped in prison.
Deck also shared with Bryant that he had no respect for his mother. Bryant
testified that she would have provided this testimony at Deck’s third penalty-phase
trial if had she been subpoenaed and called to testify. (Resp. Exh. UU at 199-209.)
Trial counsel testified at the post-conviction hearing that their investigator
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attempted to locate Bryant prior to the third penalty-phase trial but was met with
hostility from Bryant’s husband who did not want Bryant to become involved. No
other attempts were made to locate Bryant. Counsel determined that, given the
hostility exhibited by Bryant’s husband and the tangential nature of Bryant’s
expected testimony, the information would be best presented to the jury through
the testimony of the expert witnesses. (Resp. Exh. UU at 130-35, 249-50.)
In light of this evidence adduced at the post-conviction hearing, the Missouri
Supreme Court determined that Deck had failed to show that, through reasonable
investigation, counsel would have been able to locate Bryant and have her testify at
the third penalty-phase trial. The supreme court noted that Bryant lived with her
husband at the time, who “was always home,” and that counsel would have had to
contact her through her husband. Given that Bryant’s husband was “totally
against” her involvement in the case, it was not likely that counsel would have
been successful in continued attempts to establish contact with her. Deck IV, 381
S.W.3d at 352. In addition, the supreme court found that Bryant’s proffered
testimony would have been cumulative to testimony that had been adduced at trial;
and, further, that her testimony regarding Deck’s rape in prison would have called
attention to Deck’s adult criminal life, which could have been more detrimental
than beneficial to Deck’s case. Id. A habeas petitioner does not show prejudice by
counsel’s decision to not present evidence potentially harmful to his case,
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especially evidence highlighting the defendant’s criminal history. See Strickland,
466 U.S. at 673, 700.
Accordingly, the Missouri Supreme Court’s denial of this claim with respect
to counsel’s failure to call Stacey Tesreau-Bryant was not the result of an
unreasonable determination of the facts or contrary to clearly established federal
law. Deck is not entitled to habeas relief with respect to this uncalled witness.
I.

Ground 21 – Assistance of Trial Counsel / Failure to Call Neuropsychologist
A convicted defendant’s right to effective assistance of counsel extends to

mitigating evidence in the context of capital cases. Convicted capital defendants
have a constitutionally protected right to provide the jury with “mitigating
evidence that [their] trial counsel either failed to discover or failed to offer.”
Williams, 529 U.S. at 393. Where a habeas petitioner claims that his trial counsel
conducted an inadequate investigation into potential evidence, “a court must
consider not only the quantum of evidence already known to counsel, but also
whether the known evidence would lead a reasonable attorney to investigate
further.” Wiggins v. Smith, 539 U.S. 510, 527 (2003).
Here, Deck claims that despite trial counsel’s awareness that he had had a
number of head injuries, had used illegal drugs, and possibly experienced trauma at
birth, they did not request a neuropsychological evaluation that could have
developed evidence of brain trauma, which could have then been presented as
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mitigating evidence at his final penalty-phase trial. In denying Deck’s claim that
this constituted ineffective assistance of counsel, the Missouri Supreme Court
found that Deck could not show that he was prejudiced by counsel’s failure to seek
a neuropsychological evaluation because Deck had failed to establish that such an
evaluation would have shown that he suffered a brain injury so significant that the
jury would have voted for life instead of death. For the following reasons, this
conclusion was not the result of an unreasonable determination of the facts; nor
was it contrary to or an unreasonable application of clearly established federal law.
The claim will therefore be denied.
The Missouri Supreme Court determined that Deck failed to establish that he
was prejudiced by counsel’s conduct. To establish prejudice for counsel’s failure
to pursue or present evidence of a neuropsychological evaluation, Deck must
establish a “reasonable probability that a competent attorney, aware of the
available mitigating evidence would have introduced it at sentencing, and that had
the jury been confronted with this mitigating evidence, there is a reasonable
probability that it would have returned with a different sentence.” Sinisterra v.
United States, 600 F.3d 900, 906 (8th Cir. 2010) (quoting Wong v. Belmontes, 558
U.S. 15, 19-20 (2009)). The burden of showing prejudice here is twofold. See
Ringo v. Roper, 472 F.3d 1001, 1006 (8th Cir. 2007). First, Deck would have to
show that it was reasonably probable that if counsel had retained a
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neuropsychologist, the neuropsychologist would have diagnosed him as having a
brain injury. If Deck overcomes this initial burden, he would have to establish that
there is a reasonable probability that the brain injury evidence would have altered
the outcome of the penalty phase of the trial. Then – because I review this claim in
the habeas context – Deck would have to show that the State court’s conclusion
that he was not prejudiced involved an unreasonable application of clearly
established federal law as determined by the Supreme Court. Ringo, 472 F.3d at
1006; 28 U.S.C. § 2254(d).
At Deck’s post-conviction motion hearing, neuropsychologist Michael
Gelbort testified that he conducted a neuropsychological evaluation of Deck in
August 2010. Dr. Gelbort testified that Deck informed him during this testing of
historical events that could be important to his neuropsychological functioning –
such as hitting his head on rocks while swimming, being held under water while
trying to help a friend who was drowning, and having been born by caesarean
section – but that these descriptions were vague and Deck presented nothing that
“was clear-cut.” (Resp. Exh. TT at 56-58.) He also testified that evidence of drug
use significant for brain dysfunction was, “for the most part, absent.” (Id. at 63.)
Dr. Gelbort testified that he administered to Deck a battery of intelligence
and cognitive-based tests, none of which showed Deck to suffer significant or even
moderate impairments. Instead, Deck consistently scored within the normal range,
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albeit in the low average to average range. (See Resp. Exh. TT at 105.) To the
extent Deck’s lower scores were related, Dr. Gelbort testified that they tended to
show weakness in focus, attention, and concentration, and in his ability to
accurately account for information. (Id. at 106, 115.) Dr. Gelbort testified,
however, that on one particular test – the category test – Deck scored in the
borderline defective range, which was “right on the border between someone who
is with 95 percent assurance coming from a population that doesn’t have normal
brain function.” (Id. at 106.) This test measured Deck’s ability to see connections
between things and to take information learned from one circumstance and apply it
to similar circumstances. (Id. at 107-08.)
Dr. Gelbort testified that Deck’s history and test results would support a
finding that Deck had cognitive dysfunction, but that – if he had the same capacity
at the time of the murders as at the time of testing – he likely would have had the
capacity to understand right from wrong. (Resp. Exh. TT at 141.) Dr. Gelbort
further testified that, while Deck was less able than a normal person to make an
adept, insightful, and reasonable decision, he could “of course make a decision” to
commit or not to commit murder. (Id. at 143.)
Trial counsel testified at the post-conviction hearing that their review of Dr.
Gelbort’s report did not lead them to conclude that they should have pursued
neuropsychological evaluation for Deck’s third penalty-phase trial. Counsel
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specifically testified that information from Dr. Gelbort would have benefited the
prosecution in the case, given that testing showed Deck to function for the most
part in the average range. To the extent the testing showed a cognitive deficit
demonstrating some impaired judgment, counsel testified that the facts brought out
in testing that led to that conclusion would have been problematic for Deck at trial.
(Resp. Exh. UU at 86-92.)
Assuming without deciding that Deck could establish that testing would
have shown him to have a cognitive deficit caused by a brain injury, he
nevertheless cannot show a reasonable probability that this evidence would have
altered the outcome of his penalty-phase trial. Deck’s performance on the majority
of Dr. Gelbort’s tests showed him to function both intellectually and cognitively in
the low average to average range. To the extent one subset test and the connection
between Deck’s lower scores showed him to have difficulty with focus and
correlating information, leading to a conclusion that he had impaired judgment, Dr.
Gelbort nevertheless opined that Deck had the capacity to understand right from
wrong at the time of the murders and could “of course” decide whether or not to
commit murder. Indeed, a review of Dr. Gelbort’s hearing testimony in its entirety
supports trial counsel’s trepidation that the facts brought out through this testing
would be detrimental to Deck at the penalty-phase trial instead of benefitting him.
The Missouri Supreme Court found that counsel’s thorough investigation
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into Deck’s childhood revealed no evidence of brain damage or impaired
psychological functioning that would have led counsel to seek evidence from a
neuropsychologist in the first place. The court went on to find, however, that even
if evidence from a neuropsychologist had been obtained and presented at Deck’s
penalty-phase trial, Deck failed to show a reasonable probability that the jury
would have voted for life instead of death. Deck IV, 381 S.W.3d at 354. For the
reasons set out above, this conclusion was neither contrary to nor involved an
unreasonable application of clearly established federal law as determined by the
Supreme Court.
Accordingly, the claim raised in Ground 21 will be denied.
J.

Ground 23(a) – Assistance of Trial Counsel / Failure to Object to CrossExamination
As discussed above, Dr. Surratt testified as a mitigation witness at Deck’s

third penalty-phase trial and rendered an opinion – based upon interviews and her
review of additional evidence – that Deck’s childhood “was similar to one of the
‘most extreme cases of child abuse ever described.’” Deck IV, 381 S.W.3d at 348.
During cross-examination of Dr. Surratt, the prosecutor acknowledged that Dr.
Surratt’s testimony was intended to explain Deck’s behavior. He then engaged in
the following examination:
PROSECUTOR: And wouldn’t it be easy or helpful to explain his
behavior, if you had asked him why did you put a gun against these
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people’s head and kill them?
DR. SURRATT: And it could have, yes.
PROSECUTOR: It could have, but it also could have been pretty
detrimental to Mr. Deck, if he had said, the reason I killed them is
because I’m a no-good s.o.b. and wanted them dead, because I didn’t
want to go to prison. That wouldn’t be a very good answer for Mr.
Deck, would it?
DR. SURRATT: It would have went along with my findings of how
he responds to things; is it good or bad, not for me to say, but it
certainly would have been fitting.
PROSECUTOR: He wanting these people dead just because he
wanted their money fits along with what you believe?
COUNSEL TUCCI: Objection; asked and answered.
THE COURT: Sustained; move on, please.
Id. at 354-55 (emphasis in Deck IV). Deck claims that trial counsel was ineffective
when they failed to object to the prosecutor’s reference to Deck as being a “no
good s.o.b.” and wanting the victims dead. The Missouri Supreme Court denied
Deck’s claim, finding that he had failed to overcome the presumption that a failure
to object is a matter of trial strategy and, further, that Deck nevertheless was not
prejudiced by the prosecutor’s statement. For the following reasons, the supreme
court’s decision was neither contrary to nor an unreasonable application of clearly
established federal law. Nor was it based on an unreasonable determination of
facts. The claim will be denied.
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Because I review Deck’s claim of ineffective assistance of counsel in the
habeas context, I may not apply the Strickland analysis as if I were addressing the
claim in the first instance. In order to succeed on this habeas claim under §
2254(d)(1), therefore, it is not enough for Deck to convince me that, in my
independent judgment, the State court applied Strickland incorrectly. Rather, he
must show that that court applied Strickland to the facts of his case in an
objectively unreasonable manner. Hoon v. Iowa, 313 F.3d 1058, 1063 (8th Cir.
2002); see also Bell v. Cone, 535 U.S. 685, 698-99 (2002). For the following
reasons, Deck is unable to do so here.
“Judicial scrutiny of counsel’s performance must be highly deferential.”
Strickland, 466 U.S. at 689. Because of the inherent difficulties in assessing an
attorney’s performance, “a court must indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance; that is,
the defendant must overcome the presumption that, under the circumstances, the
challenged action ‘might be considered sound trial strategy.’” Id. (quoting Michel
v. Louisiana, 350 U.S. 91, 101 (1955)). To establish prejudice on account of
counsel’s performance during the penalty phase of this capital case, Deck must
show that in the absence of counsel’s error, the jury would not have sentenced him
to death. Cole v. Roper, 579 F. Supp. 2d 1246, 1263 (E.D. Mo. 2008), aff’d, 623
F.3d 1183 (8th Cir. 2010).
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In its decision, the Missouri Supreme Court acknowledged that the
prosecutor’s challenged remark was improper and that trial counsel could not
articulate at the post-conviction hearing their strategy for not objecting to the
statement. The supreme court noted that one of Deck’s attorneys, attorney
Reynolds, suggested at the hearing that an objection may not have been made so as
not to highlight the issue for the jury, and the court found this to be reasonable trial
strategy. Deck IV, 381 S.W.3d at 357. Although Deck argues that the court could
not have reasonably found this to be a strategy given that counsel did not articulate
any specific strategy at the post-conviction hearing, “[t]rial counsel’s lack of a
strategic reason for failing to object is irrelevant” to my inquiry here, given that
Deck suffered no prejudice from this failure. Cole, 579 F. Supp. 2d at 1264.
The Missouri Supreme Court noted that the challenged statement was brief
and that further questioning in this vein was “shut down” by counsel’s sustained
objection, which avoided the compounding effect of egregious errors. As noted
earlier in this opinion, the jury had before it live testimony of fifteen witnesses,
deposition testimony from three additional witnesses, expert testimony, and
seventy exhibits. The trial record spanned over 450 pages. In view of this, even if
counsel’s failure to object to the prosecutor’s improper remark was unreasonable,
Deck has failed to demonstrate that this brief and isolated remark had a substantial
and injurious effect on the trial as a whole, or greatly influenced the jury to the
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extent that it returned a sentence of death because of it. See Nave v. Delo, 62 F.3d
1024, 1027 (8th Cir. 1995); Schneider v. Delo, 890 F. Supp. 791, 831 (E.D. Mo.
1995), aff’d, 85 F.3d 335 (8th Cir. 1996).
Accordingly, the Missouri Supreme Court did not misapply Strickland when
it found that Deck could not establish a claim of ineffective assistance of counsel
given his failure to show that he suffered prejudice as a result of counsel’s failure
to object to the prosecutor’s improper remark. Because I can grant relief on this
claim only if the Missouri court applied Strickland unreasonably, and it did not, the
claim raised in Ground 23(a) will be denied. See Nance v. Norris, 392 F.3d 284,
294 (8th Cir. 2004).
K.

Ground 24(a) – Assistance of Trial Counsel / Failure to Object to Closing
Argument
For similar reasons set out above with respect to Ground 23(a), this claim of

ineffective assistance of counsel fails.
Deck was convicted in 1985 of aiding an escape from prison. His sentence
and judgment for this conviction was admitted at the third penalty-phase trial; no
other evidence relating to this crime was admitted. During closing argument, the
prosecutor told the jury that it could consider “all [Deck’s] prior escapes” and
urged the jury not to impose a life sentence, arguing that Deck knew how to escape
and, further, had helped others escape – “people that were in for the rest of their
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lives.” Deck IV, 381 S.W.3d at 357. Deck’s counsel objected on the bases that this
prior conviction was not a noticed aggravator and that the argument was irrelevant.
Both objections were overruled. Deck now claims that his counsel was ineffective
because he should have argued that the prosecutor’s argument misstated the
evidence, implied to the jury that the prosecutor was aware of additional facts
regarding multiple escapes, and improperly injected fear into the jury’s
considerations.
In reviewing this claim on post-conviction appeal, the Missouri Supreme
Court determined that Deck could not show that he was prejudiced by the
prosecutor’s misstatements. The court examined the prosecutor’s challenged
statements “in the context of the entire record” and determined that the
prosecutor’s simple misstatement of the plural form of “escape” did not affect the
jury’s sentencing decision. To the extent the prosecutor addressed the sentence
length of the persons whom Deck aided in their escape, the supreme court referred
to the findings of the post-conviction motion court – which found that the import
of this part of the prosecutor’s argument was that Deck knew how to escape,
thereby making sentence length of those whom he helped escape inconsequential
and insignificant (Resp. Exh. RR at 306) – and, again viewing the statement in the
context of the entire record, determined the motion court not to have erred in its
conclusion. The supreme court therefore determined that Deck failed to show that,
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had counsel indeed pursued additional objections to the prosecutor’s
misstatements, the result of Deck’s sentencing proceeding would have been
different. Deck IV, 381 S.W.3d at 358.
The Missouri Supreme Court reviewed the prosecutor’s challenged
statements in the context of the entire trial – which, as I have repeatedly noted,
contained extensive evidence – and found that there was no reasonable probability
that the jury would have returned a different verdict if counsel had made additional
objections to the statements. In reaching this conclusion that Deck did not show
prejudice under Strickland, the court did not misapply Strickland nor apply it
unreasonably. Accordingly, regardless of any doubt that may exist with respect to
whether counsel lodged the appropriate objections to the prosecutor’s statements
made during closing argument, this habeas claim of ineffective assistance of
counsel must be denied. Nance, 392 F.3d at 294.
L.

Ground 25 – Assistance of Trial Counsel / Jury Questionnaires
Jurors G.H. and R.E. sat on the jury at the third penalty-phase trial that voted

to sentence Deck to death. In her juror questionnaire, G.H. reported that she was
married to a Missouri State park ranger, and currently worked as an inventory
control specialist at a retail store. (Traverse, Exh. 6, ECF #67-6.) In R.E.’s
questionnaire, he answered “yes” to the question “Are you related to or close
friends with any law enforcement officer?” (Id., Exh. 7, ECF #67-7.) Deck claims
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that his trial counsel was ineffective for not asking these jurors to elaborate on
these answers during voir dire examination, “with an eye to a challenge for cause
or peremptory strike.” (Amd. Petn., ECF #30 at 95.) Deck’s claim fails.
Juror G.H. – Juror Number 65
Deck first argues that trial counsel should have questioned G.H. about her
employment as an inventory control specialist. He argues that this position likely
involves concerns with theft and that, because Deck had prior convictions for theft,
G.H.’s response to the question regarding her employment deserved further
inquiry. Other than claiming that he could have considered this information when
determining strikes, Deck does not present any argument or show how he was
prejudiced by counsel’s failure to question G.H. in this manner. Regardless, I have
reviewed the transcript of the entire voir dire examination of all the venire
members and find that counsel did not act unreasonably by not specifically
questioning G.H. about her employment.
After general voir dire examination, the venire panel was divided into four
groups for further examination. G.H. was in the third group. During examination
of the first group, Deck’s counsel began asking the venire members specific
questions regarding their employment. (Resp. Exh. KK at 298-300.) The court
admonished counsel and instructed him not to continue: “I don’t see how going
into the occupation or employment is going to assist in any way, shape, or form in
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answering the questions that you and the state and the Court are going to have to
answer when it comes time to striking any additional people.” (Id. at 302.) With
this admonishment, it cannot be said that counsel acted unreasonably when he did
not ask specific questions of G.H. regarding her employment when the third venire
group underwent voir dire examination. Cf. Moore v. Haviland, 531 F.3d 393, 403
(6th Cir. 2008) (unreasonable to require litigant to refuse court’s orders in order to
preserve claim).
To the extent it may be argued that counsel should have asked these
employment questions during the general voir dire examination, my review of that
examination shows G.H. not to have exhibited any evidence of bias or prejudice
with respect to the issue of theft. Indeed, she testified during general examination
that her brother was currently serving a prison sentence for a crime that involved
stealing, but that she could put aside that experience and decide Deck’s case solely
on the facts presented in court. (Resp. Exh. KK at 192-93.) Deck has presented no
evidence or argument, and none appears in the record, that G.H. acted with actual
or implied bias during her service on the jury. Because Deck cannot show that
G.H.’s presence on the jury prejudiced him, he cannot prevail on his ineffective
assistance claim. Sanders, 529 F.3d at 794.
Deck also argues that counsel “asked no questions” of G.H. regarding her
questionnaire answer that her husband was a law enforcement officer, that is, a
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park ranger; and, further, did not follow up on her voir dire answer that he “worked
for the state parks.” (Amd. Petn., ECF #30 at 95.) My review of the voir dire
examination shows Deck’s claim to be without merit:
MR. TUCCI: . . . Has anybody ever been married to a police officer?
Juror Number 65, you are – are you currently married to a police
officer?
VENIREPERSON NUMBER 65: Yes, he first started with the police
department in Curreyville, and the Sheriff’s Department, and then he
went to the State.
MR. TUCCI: Now he’s a park ranger?
VENIREPERSON NUMBER 65: Yes. He’s been in law
enforcement for 20 years.
MR. TUCCI: For over 20?
VENIREPERSON NUMBER 65: Over 20.
(Resp. Exh. KK at 215.) Deck’s claim that counsel failed to ask G.H. about her
husband’s employment as a law enforcement officer is belied by the record. I need
not discuss this claim further.
Juror R.E. – Juror Number 6025
During the general voir dire examination, the panel was asked if they or a
close family member or friend was involved in law enforcement. (Resp. Exh. KK

25

Although Deck states that R.E. was Juror Number 9 on the venire panel (Amd. Petn., ECF #30
at 95), my review of the record shows that R.E. was actually Number 60. He was Number 9 on
the petit jury that sat during the penalty-phase trial. (Resp. Exh. KK at 459-60.)
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at 157-58.) Although R.E. responded “yes” to the law enforcement question on the
juror questionnaire, he did not respond to the question during voir dire. Each
venire member who did answer “yes” during voir dire was then asked whether this
circumstance would affect their ability to be fair in the case and whether they
would be able to decide the case based solely on the evidence adduced at trial. (Id.
at 158-69.) Deck claims that his counsel should have developed the issue of R.E.’s
relationship with law enforcement during voir dire, “with an eye to a challenge for
cause or a peremptory strike.” (Amd. Petn., ECF #30 at 95.)
My review of the voir dire examination shows R.E. to have responded
directly to only one question, that being one asking about military service. R.E.
responded that he was in the Navy for eight years and that nothing about his
experience would make him unable to deliberate on the facts as heard only in
court. (Resp. Exh. KK at 222-23.)
At the end of the prosecutor’s examination, the entire panel was asked if
anyone felt the need to respond to a question that was asked earlier. R.E. did not
respond. (Resp. Exh. KK at 200-01.) At the conclusion of defense counsel’s
examination, the panel was asked whether there were any issues – either already
addressed or not – that would “enter into [their] thinking” if they were to consider
the case. R.E. did not respond. (Id. at 239-40.)
As with G.H., my review of the entire voir dire examination shows that R.E.
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did not exhibit any evidence of bias or prejudice, or raise any concern regarding his
ability to consider the case on only the facts presented in court. Deck has
presented no evidence or argument, and none appears in the record, that R.E. acted
with actual or implied bias during his service on the jury. Because Deck cannot
show that R.E.’s presence on the jury prejudiced him, he cannot prevail on his
ineffective assistance claim. Sanders, 529 F.3d at 794.
The claim raised in Ground 25 will be denied.
VIII. Claims Granted – Unconstitutional Delay
The murders of James and Zelda Long occurred on July 8, 1996, and Deck
was arrested that same date. Deck was tried for the murders in February 1998 and
was sentenced to death. The sentence was reversed, and a second penalty-phase
trial was held in 2003, which resulted in another death sentence. The United States
Supreme Court reversed that sentence in 2005. Deck’s third and final penaltyphase trial was held in September 2008, and Deck was again sentenced to death for
the murders.
In Ground 31 of his petition, Deck claims that the inordinate delay between
his conviction in February 1998 and his final sentencing trial in September 2008
caused his mitigation evidence to be unavailable on account of its loss or
destruction and because of “witness fatigue,” thereby depriving him of his
constitutional right to adequately present mitigating evidence to the jury at his third
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penalty-phase trial. Deck argues that because this delay was not attributable to
him, his sentencing proceeding was fundamentally unfair and thus violated his
rights to due process and to be free from the infliction of cruel and unusual
punishment. In Ground 32(a), Deck claims that trial counsel was ineffective for
failing to bring this due process/Eighth Amendment claim in State court. For the
following reasons, I will grant habeas relief on these claims.
A.

Background
The Long murders occurred in July 1996, and Deck’s trial for the murders

was held in February 1998, after which he was sentenced to death in accordance
with the jury’s verdicts. The sentence was reversed in February 2002 after the
Missouri Supreme Court found that Deck received ineffective assistance of counsel
during the penalty phase of the trial. Deck’s second penalty-phase trial was held
fourteen months later – in April 2003 – and he was again sentenced to death. In
May 2005, the United States Supreme Court reversed this death sentence, finding
that Deck’s visible shackling during the second penalty-phase trial violated his
constitutional right to due process. On August 30, 2005, the matter was remanded
back to the circuit court for a new penalty-phase trial. (Resp. Exh. GG at 67-68.)
Three years later, in September 2008, Deck’s third penalty-phase trial began. Over
ten years had passed since Deck’s conviction, and over twelve years had passed
since the Long murders.
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After the case was remanded to the circuit court in 2005, defense counsel
filed various motions, including motions to change venue, to produce Brady
material, for discovery, and for imposition of a life sentence under Missouri law.
The motions were filed in November 2005, and they were set to be heard on the
circuit court’s February 2006 docket. At that docket, the court set the trial for
September 12, 2006. (Resp. Exh. GG at 118.) The Jefferson County Prosecuting
Attorney’s Office represented the State.
On March 15, 2006, the State sought a three-day continuance of the trial
because of the unavailability of one of its witnesses. This extension was granted.
(Resp. Exh. GG at 124.) On March 24, 2006, for reasons not stated, the State
requested another trial continuance to December 2006, to which Deck objected.
The court continued the trial to March 27, 2007. (Id. at 126.)
In August 2006, Deck’s attorneys were permitted to withdraw because of a
conflict of interest. New counsel, Stephen Reynolds and John Tucci, entered and
they remained Deck’s trial counsel through the remainder of the penalty-phase
proceedings. On January 9, 2007, counsel requested that the March 2007 trial be
continued, arguing, inter alia, that they were in the process of interviewing and
securing mitigation witnesses from the previous penalty-phase trials; were
attempting to obtain additional mitigation evidence and locate additional witnesses;
and that recently-secured expert Dr. Surratt had been unable to review the case.
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Counsel averred that Dr. Surratt would be available for trial in July or August
2007. (Resp. Exh. GG at 157-60.) The court continued the trial to October 30,
2007. (Id. at 170.)
Trial counsel filed additional pretrial motions in September 2007, some of
which emphasized the constitutional significance of mitigation evidence and its
effect on the jury’s determination of life versus death. (See, e.g., Resp. Exh. HH at
220-30, et seq.). Among these motions were requests to admit prior videotaped
and/or deposition testimony of some mitigation witnesses for the reason that they
were unavailable to testify because of illness and/or were located out of state. In
the latter instance, counsel averred that they had made efforts to contact a witness
at her last known location in Utah but were unsuccessful. (Id. at 251.)
In October 2007, Deck’s counsel notified the trial court that they had
recently become aware that the niece of James and Zelda Long was an employee in
the Victims Services Unit of the Jefferson County Prosecuting Attorney’s Office
and was involved in a meeting between the prosecuting attorney and the Long
family regarding a proposed disposition proffered by Deck and his counsel.
Counsel also informed the court that after this meeting, the niece was reported to
have told other persons in the courthouse about the outcome of the meeting, and
specifically, that the proffer was rejected. (Resp. Exh. HH at 330-33.) On October
19, 2007, the court disqualified the Jefferson County Prosecutor’s Office for
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conflict of interest. (Resp. Exh. II at 460.) After the Missouri Attorney General’s
Office entered for the State in December, the court reset the trial to September 15,
2008 (see Resp. Exh. GG at 51; Exh. II at 463), which is when Deck’s third
penalty-phase trial began.
The only live testimony Deck’s counsel presented at trial was from a child
development expert and a psychiatrist. Counsel also presented videotaped
depositions of Deck’s brother and aunt, and they read into the record depositions of
another aunt and of a foster parent. The State presented live testimony from
thirteen witnesses: four relatives of the Longs, eight investigating law enforcement
officers, and the medical examiner. After deliberating for three hours, the jury
returned its verdict for death. The Missouri Supreme Court affirmed the sentence
on direct appeal, and the United States Supreme Court denied certiorari.
In May 2010, Deck filed his pro se motion to vacate, set aside, or correct his
sentence under Missouri Supreme Court Rule 29.15, raising three claims for relief:
1) that trial counsel was ineffective for failing to adduce all mitigating evidence; 2)
that trial counsel was ineffective for providing wrong advice regarding his decision
to testify; and 3) that his sentence violates his Eighth Amendment right to be free
from cruel and unusual punishment. (Resp. Exh. QQ at 6.) Appointed counsel
thereafter filed an amended post-conviction motion, raising seven claims for relief,
six of which challenged the assistance of trial counsel. Three of those claims
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addressed counsel’s presentation of mitigation evidence, with two claims
specifically alleging that trial counsel failed to call additional mitigation witnesses
and failed to present additional mitigation record evidence. Post-conviction
counsel argued that trial counsel should have but failed to call several mitigation
witnesses at the third penalty-phase trial, averring that these witnesses were all
available and would have testified if subpoenaed. Trial counsel’s testimony at the
post-conviction hearing, however, revealed a different story.
At the first penalty-phase trial in 1998, Deck presented the live testimony of
four witnesses: Rita Deck, Beverly Dulinski, Major Puckett, and Michael Deck.
The Missouri Supreme Court found this mitigation evidence to be “substantial.”26
At the second penalty-phase trial in 2003, Deck presented the live testimony of
Rita Deck, Beverly Dulinski, Elvina Deck, Major Puckett, and Dr. Surratt. Deck
also presented the video deposition of Michael Deck at the second trial. Prior to
the third penalty-phase trial in 2008, trial counsel attempted to contact some of
these witnesses and others to have them testify. Attorney Tucci testified at the
post-conviction hearing that he thought it was “absolutely” important to have some
of Deck’s family members testify at trial – to be able to “look at the jury, and say,
please spare his life. He is of value to me.” (Resp. Exh. UU at 142-43.) He
26

Indeed, the court held that with this substantial mitigating evidence, there was a reasonable
probability that the result of the proceeding would have been different if the jury had been given
proper penalty-phase instructions. Deck II, 68 S.W.3d at 431.
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further testified, however, that because of changed circumstances given the
passage of time, these persons could not be located or were no longer willing or
able to participate. “[A] lot of time has passed between 2000 and 2006, 2007,
whatever year it was or 2008. . . . [T]here were so few and so scarce of live family
members who would come and say anything on Carman’s behalf, that we would
try to grasp anybody that we could.” (See id. at 118-23.)
Tucci testified that in determining their strategy as to what witnesses and
evidence to present at trial, he and co-counsel had to consider what was going on
with these potential witnesses “immediately prior to trial,” because “some people
had changed.” (Resp. Exh. UU at 181-82.) For instance, Tucci testified that while
Rita Deck was cooperative and provided favorable testimony at the two earlier
penalty-phase trials (id. at 118), she was “now doing a 180” with respect to the
third trial. (Id. at 181-82.) Rita’s husband, Pete, was too sick to testify and Rita
sought to have him released from his subpoena. (Id. at 114-16.) Counsel wanted
to talk to Elvina Deck to determine where she stood “at that particular time” –
especially “given the passage of time, and seeing how Rita Deck had changed her
opinion” – but she could not be located by their investigator. (Resp. Exh. UU at
121-23.) While looking for Elvina, however, the investigator learned that another
potential witness, namely Norman Deck, had died. (Id.)
Tucci testified that if they could have found any person who could have
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helped to spare Deck’s life, they would have presented them at trial. “This guy’s
life is at stake, and anything that we had that would have helped, you know, held
water, and that, you know, would have served as just one basis, one basis to spare
Carman Deck’s life, that person would have been presented.” (Resp. Exh. UU at
193.) But he recognized during Deck’s earlier post-conviction proceedings back in
2000 and 2003 that “if this case ever went back to trial, these people are going to
become as uncooperative at trial as they were like wood [sic] dogs.” (Id. at 154.)
As it turned out, Deck indeed had to go back to trial, and these people became
uncooperative.
B.

Discussion
At the time Deck’s sentencing judgment became final, the law was clearly

established that, in a capital case, a criminal defendant has a constitutionally
protected right to provide the jury with mitigating evidence. Williams, 529 U.S. at
393. The Eighth Amendment prohibits the infliction of cruel and unusual
punishment, which, in a capital case, means that while the death penalty may be
the appropriate punishment in a specific case, it can only be imposed after
adequate consideration of factors that might warrant mercy. Woodson v. North
Carolina, 428 U.S. 280, 305 (1976); California v. Brown, 479 U.S. 538, 554
(1987). The presentation of mitigating evidence allows for the consideration of
“compassionate or mitigating factors stemming from the diverse frailties of
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humankind . . . [which is] a constitutionally indispensable part of the process of
inflicting the penalty of death.” Woodson, 428 U.S. at 304. See also Skipper v.
South Carolina, 476 U.S. 1 (1986). Accordingly, the sentencer must “‘not be
precluded from considering, as a mitigating factor, any aspect of a defendant’s
character or record and any of the circumstances of the offense that the defendant
proffers as a basis for a sentence less than death.’” Eddings v. Oklahoma, 455 U.S.
104, 110 (1982) (quoting Lockett v. Ohio, 438 U.S. 586, 604 (1978)) (emphasis in
Lockett).
Deck claims here that the inordinate delay between his conviction in
February 1998 and his final sentencing trial in September 2008 caused his
mitigation evidence to be unavailable on account of its loss or destruction and
because of “witness fatigue,” thereby depriving him of his constitutional right to
adequately present mitigating evidence to the jury at his third penalty-phase trial.
Deck argues that because this delay was not attributable to him, his sentencing
proceeding was fundamentally unfair and thus violated his rights to due process
and to be free from the infliction of cruel and unusual punishment.
In Betterman v. Montana, the United States Supreme Court held that a
criminal defendant’s right to a speedy trial under the Sixth Amendment does not
apply once he has been found guilty at trial or has pleaded guilty to criminal
charges. The Sixth Amendment’s speedy trial guarantee protects the accused from
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arrest or indictment through trial, but not after a defendant has been convicted.
136 S. Ct. 1609, 1612 (2016). The Court recognized, however, that for inordinate
delay in sentencing, a defendant may have recourse other than the Speedy Trial
Clause of the Sixth Amendment, “including, in appropriate circumstances, tailored
relief under the Due Process Clauses of the Fifth and Fourteenth Amendments.”
Id. “After conviction, a defendant’s due process right to liberty, while diminished,
is still present. He retains an interest in a sentencing proceeding that is
fundamentally fair.” Id. at 1617. “[D]ue process serves as a backstop against
exorbitant delay” between conviction and sentence. Id.
The defendant in Betterman did not raise a due process challenge to the
fourteen-month gap between his conviction and sentence, so the Supreme Court
limited its specific holding to his Sixth Amendment challenge and expressed “no
opinion on how he might fare under that more pliable [due process] standard.” 136
S. Ct. at 1617-18 (citing United States v. $8,850, 461 U.S. 555, 562-565 (1983)).
The Court noted, however, that considerations relevant to such a due process
challenge “may include the length of and reasons for delay, the defendant’s
diligence in requesting expeditious sentencing, and prejudice.” Id. at 1618 n.12.
See also $8,850, 461 U.S. at 564-65 (factors to consider when assessing whether
due process requirement of fairness has been satisfied in a particular case); Barker
v. Wingo, 407 U.S. 514, 530 (1972). When viewed in the context of speedy trial
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delay or delay in forfeiture proceedings, these factors are required to be considered
together with all other relevant circumstances. Barker, 407 U.S. at 533. All
factors are related. No one factor is outcome-determinative. Id. In considering
Deck’s claim that the delay between his conviction and final penalty-phase trial
rendered his final sentencing proceeding fundamentally unfair, I will likewise
review these factors together and take into consideration the other circumstances of
the case.
Length of Delay
“[T]he overarching factor is the length of the delay,” which the Supreme
Court considers to be “a triggering mechanism” for the remainder of the due
process analysis. $8,850, 461 U.S. at 565 (citing Barker). “Little can be said on
when a delay becomes presumptively improper, for the determination necessarily
depends on the facts of the particular case.” Id. I find here that the ten-and-a-halfyear delay between Deck’s conviction and his final penalty-phase trial triggers the
remainder of the due process analysis, especially given the negative implications
such a delay could have on a capital defendant’s constitutionally protected right to
adequately provide the sentencing jury with mitigating evidence for its
consideration in determining the appropriate sentence.

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Reason for Delay
Regarding the reason for the delay, “different weights should be assigned to
different reasons.” Barker, 407 U.S. at 531. A deliberate attempt to interfere with
the defense would weigh heavily against the government, and more neutral reasons
such as negligence or an overcrowded docket should weigh less heavily. Even
neutral reasons must be considered, however, “since the ultimate responsibility for
such circumstances must rest with the government rather than with the defendant.”
Id. However, if the delay is attributable exclusively to the defendant, he may be
found to have waived his right to a speedy resolution. See id. at 529. I find the
reasons underlying the lengthy delay here to weigh against the government.
Deck’s original sentence imposed in 1998 was reversed in 2002 when the
Missouri Supreme Court determined that trial counsel’s errors during the penalty
phase of the trial were so egregious that there was “a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have
been different.” Deck II, 68 S.W.3d at 431.27 Upon remand, the circuit court set
the second penalty-phase trial for April 29, 2003, and, after Deck and the State
proceeded through pretrial motion practice, the case began as scheduled. I cannot
weigh against Deck this initial span of time between his conviction and second

27

The Missouri Supreme Court made this determination on the “particular facts of [the] case,”
which included the fact that “substantial mitigating evidence was offered.” 63 S.W.3d at 431.
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penalty-phase trial, because – beyond the time taken for appellate and postconviction review – it was the ineffective assistance of his counsel at the first trial
that accounted for this delay. When attorney error amounts to constitutionally
ineffective assistance of counsel, that error is imputed to the State. Coleman, 501
U.S. at 754. For when a State obtains a conviction against a defendant who was
denied the effective assistance of counsel, “it is the State that unconstitutionally
deprives the defendant of his liberty.” Cuyler v. Sullivan, 446 U.S. 335, 343
(1980).
Prior to the start of Deck’s second penalty-phase trial, his trial counsel
requested that the jury not be permitted to view Deck in shackles or restraints. The
court denied this request, and trial proceeded. (Resp. Exh. S at 183-94.) After the
jury returned its death verdict and the death sentence was imposed, Deck directly
appealed. The Missouri Supreme Court affirmed the sentence in May 2004, but
the United States Supreme Court granted certiorari. On May 23, 2005, the Court
reversed Deck’s death sentence, finding his visible shackling in leg irons,
handcuffs, and a belly chain to have violated a basic element of constitutional due
process in the circumstances of the case. Deck v. Missouri, 544 U.S. 622 (2005).
The matter was remanded to the circuit court in August 2005 for a new penaltyphase trial. Trial began three years later, in September 2008.
Beyond the time expended to proceed through the appellate process, the
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delay between the second and third penalty-phase trials must be weighed against
the government. First, as with the constitutionally ineffective counsel during the
first penalty-phase trial, the deprivation of Deck’s constitutional right to due
process in the second penalty-phase trial is imputed to the State. See Evitts, 469
U.S. at 396 (quoting Cuyler, 446 U.S. at 343). In addition, the first trial setting
after remand was for September 2006. After obtaining a three-day continuance,
the State requested an additional three-month continuance for unknown reasons.
The court continued the trial for an additional six months, however, to March
2007. After new counsel entered for Deck, they asked for an additional
continuance so that they could obtain mitigating evidence. Although counsel
averred that they would be ready to proceed to trial in July, the trial court
continued the trial to October. Immediately prior to trial, the court disqualified the
prosecuting attorney’s office after learning that it employed a member of the
victims’ family. The trial was thereafter continued for another ten months. While
some delay is to be expected with motion practice and docket management, the
responsibility for a significant amount of time that passed here lies with the State,
especially with its requested continuance for unknown reasons and its undisclosed
conflict of interest that resulted in another ten-month delay. Further, the court
repeatedly continued the trial for several months at a time, with such continuances
greatly exceeding the time requested by the respective party. While these delays
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may have been for a neutral reason, such as a crowded docket, they nevertheless
cannot be weighed against Deck.
Diligence in Requesting Expeditious Sentencing
This factor does not weigh heavily in favor of either Deck or the State. I do
not find, however, that Deck’s conduct shows that he failed to pursue an
expeditious proceeding. First, I note that Deck objected to the State’s request for a
three-month continuance from the September 2006 trial setting. From this, it
cannot be said that he passively acquiesced in delayed proceedings. Cf. Barker,
407 U.S. at 529. In addition, I note that Deck sought one limited continuance so
that his counsel could secure mitigation witnesses and prepare documents to be
reviewed by their expert. Not only is this a reasonable reason to request a delay,
but counsel indicated in their request that they would be ready to go to trial only
four months after the then-scheduled trial date. This request for a limited fourmonth continuance does not show a lack of diligence.
Prejudice
“[T]he inability of a defendant to adequately prepare his case skews the
fairness of the entire system. If witnesses die or disappear during a delay, the
prejudice is obvious.” Barker, 407 U.S. at 532.
Here, prejudice resulting from the delay weighs heavily in favor of Deck.
As described above, his inability to present substantial mitigation evidence at his
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third penalty-phase trial was directly attributable to the passage of many years’
time. Witnesses who previously cooperated and provided favorable testimony
were no longer available, either because of their unknown location, changed and
hostile attitudes, illness, or even death. These witnesses provided mitigation
testimony at earlier trials that the Missouri Supreme Court itself found
“substantial” – indeed to the extent that it found that without constitutional error, a
reasonable probability existed that the jury would not have voted for death.
Conclusion
The death penalties imposed after Deck’s first and second penalty-phase
trials were reversed because of constitutional error that occurred during those
trials. When Deck’s third and final penalty-phase trial began, over ten years had
passed since his conviction. Most of this delay is attributed to the action of the
State, especially since the violation of Deck’s constitutional rights in the first and
second penalty-phase trials were not Deck’s fault; and Deck did nothing to forfeit
his right to a speedy disposition. With the demonstrated unavailability of
mitigation evidence (previously found to be substantial) having been caused by this
significant passage of time, the prejudice suffered by Deck is obvious.
Accordingly, after carefully balancing these factors and all other relevant
circumstances of this case, I find that the inordinate passage of time between
Deck’s conviction and his final penalty-phase trial deprived Deck of his
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constitutional right to present mitigation evidence, thereby rendering his final trial
fundamentally unfair. Deck’s inability to present mitigation evidence prevented
the jury from adequately considering compassionate or mitigating factors that
might have warranted mercy. And, as the Missouri Supreme Court found in Deck
II, the mitigating evidence presented at the first trial was substantial. Deck II, 68
S.W.3d at 430-31. Because the last jury was not able to consider this substantial
mitigating evidence, imposition of the death penalty violates Deck’s right to be
free from cruel and unusual punishment.
C.

Ground 32(a) – Trial Counsel Failed to Raise this Meritorious Claim
Despite the meritorious basis of this due process/Eighth Amendment claim,

Deck’s trial counsel did not raise the claim in any State court proceeding. In
Ground 32(a), Deck claims that counsel was ineffective for their failure to do so. I
agree. However, this ineffective assistance of counsel claim likewise was not
raised in State court, thereby making it subject to procedural default. Deck can
only overcome this procedural bar by demonstrating “cause for the default and
actual prejudice as a result of the alleged violation of federal law.” Coleman, 501
U.S. at 750. For the reasons that follow, I find that Deck has shown sufficient
cause and prejudice to excuse his procedural default, and I will therefore proceed
to determine the claim.

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Cause for Default
A habeas petitioner can establish cause for failing to raise a claim of
ineffective assistance of trial counsel by demonstrating that his initial-review postconviction counsel was constitutionally ineffective. To do this, the petitioner must
show that post-conviction counsel was ineffective under the standards of
Strickland and further demonstrate that his underlying claim of ineffective
assistance of trial counsel is a “substantial” one, that is, that the claim has some
merit. Martinez, 566 U.S. at 14. Deck relies on Martinez to argue that postconviction counsel’s failure to raise his substantial claim of ineffective trial
counsel constitutes cause for his procedural default of the underlying claim. I
agree.
Deck’s underlying claim of ineffective assistance of trial counsel has some
merit and is therefore “substantial” under Martinez. The record shows that trial
counsel was acutely aware of the constitutional significance of presenting
mitigation evidence at Deck’s penalty-phase trial and likewise knew that they were
unable to present some of that evidence solely because of the passage of time.
Evidence adduced at earlier trials – determined by the Missouri Supreme Court to
be substantial and, in the absence of constitutional error, likely would have caused
the jury to vote for life instead of death – was no longer available. Counsel made
the trial court aware that they were unable to secure some of this evidence, and
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they were put in the position of having to make strategic decisions not to present
other evidence because of attitudes that had changed over time. Despite their
awareness that Deck could not present desired mitigation evidence to the jury as he
is constitutionally entitled to do, that this inability was on account of inordinate
delay not attributable to Deck, and that his final penalty-phase trial was rendered
fundamentally unfair as a result, counsel did not raise this constitutional claim.
Given the “severity” and “finality” of the sanction of death, Monge v.
California, 524 U.S. 721, 732 (1998), the “acute need” for reliable decisionmaking
when the death penalty is at issue, id., and counsel’s demonstrated awareness that
the jury was being precluded from adequately considering aspects of Deck’s
character and record that might warrant mercy, counsel’s error in failing to raise
these constitutional issues deprived Deck of “counsel” as guaranteed by the Sixth
Amendment. Because of counsel’s error, Deck proceeded through a death penalty
trial that was fundamentally unfair from the outset and, indeed, from even before it
began. Given trial counsel’s deficient performance in this regard, coupled with the
prejudicial result, Deck’s claim that he received constitutionally ineffective
assistance of trial counsel was substantial and should have been raised in State
court by post-conviction counsel.
And post-conviction counsel was ineffective for failing to raise it. As
discussed earlier, post-conviction counsel raised numerous claims of ineffective
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assistance of trial counsel, all of which provided insufficient bases to grant relief.
While post-conviction counsel challenged trial counsel’s failure to present certain
mitigation evidence, they did not explore the “why” behind this failure. Instead, in
a perfunctory manner, they represented to the motion court that all witnesses that
should have been called by trial counsel were ready, willing, and able to testify at
the final penalty trial. The court found, however, that with respect to a number of
these witnesses, the representation that they would have cooperated “was not, in
fact, true.” (Resp. Exh. RR at 302.) Instead, the court found that many witnesses
were hostile and uncooperative, could not be found, or avoided contact. (Id. at
295-98.)
It is not difficult to see from a review of the record that the passage of time
rendered much of this evidence unavailable. The constitutional implications of the
delayed penalty trial in this case are apparent. Had post-conviction counsel
adequately investigated why trial counsel did not call a number of mitigation
witnesses, they would have discovered this circumstance, thereby providing the
basis for a meritorious claim that counsel was ineffective for failing to raise a
claim of constitutional error at trial – which itself was a claim that was likely to
succeed. Given the evidence that was known, a reasonable attorney would have
investigated further. Wiggins, 539 U.S. at 527. Failure to do so in the
circumstances of this case, leading to the failure to raise a meritorious claim,
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rendered post-conviction counsel’s conduct deficient. Strickland, 466 U.S. at 69091.
Because there is a reasonable probability that the result of Deck’s final
penalty proceeding would have been different had trial counsel been
constitutionally adequate, there is necessarily a reasonable probability that the
State court would have so found had post-conviction counsel properly presented
that underlying claim. See Arkansas v. Sullivan, 532 U.S. 769 (2001) (state
supreme court, like all lower courts, must abide by United States Supreme Court’s
interpretation of constitutional rights). Because there is a reasonable probability
that Deck would have succeeded on his claim of ineffective assistance of trial
counsel had it been raised to the State court in his post-conviction motion, I
conclude that Deck was prejudiced by post-conviction counsel’s failure to raise the
claim.
For all of the foregoing reasons, post-conviction counsel rendered
ineffective assistance in failing to raise Deck’s underlying claim of ineffective
assistance of trial counsel in State court. Deck has therefore established “cause”
for his default of the underlying claim. I now turn to whether he was prejudiced by
trial counsel’s failure to raise the claim of constitutional error.

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Prejudice as a Result of Counsel Error
To show prejudice, Deck must demonstrate that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. Strickland, 466 U.S. at 695. A “reasonable
probability” is one sufficient to undermine confidence in the outcome. Id.
Substantial mitigation evidence was offered at Deck’s first penalty-phase
trial. This and additional mitigation evidence was offered at Deck’s second
penalty-phase trial. Both of these trials, however, were constitutionally deficient.
At the third penalty-phase trial, Deck was precluded from presenting certain
mitigation evidence – including from witnesses called at the first two trials –
because the inordinate delay in proceeding to the third trial caused this evidence to
become unavailable. The jury was therefore precluded from considering
mitigating factors bearing on Deck’s character and record, which itself is a
constitutionally indispensable part of the process of sentencing a person to death.
Considering that, through no fault of his own, Deck could not present
mitigation evidence that was previously found to be substantial, and that the jury
could not consider this evidence given its unavailability, I find there to be a
reasonable probability that Deck would not have been sentenced to death if his
counsel had raised this constitutional challenge. Indeed, I find there to be a
reasonable probability that Deck would not have even undergone the third penalty- 165 -

phase trial had counsel properly raised this issue, because these constitutional
deficiencies could not at that time, and cannot now, be cured. Accordingly, had
counsel raised this constitutional claim at or before trial, there is a reasonable
likelihood that the outcome of the sentencing proceeding would have been
different. Deck has therefore shown that he was prejudiced by counsel’s error.
Deck has thus shown cause for his default and prejudice as a result of the
constitutional violation. I therefore may address the merits of his underlying claim
of ineffective assistance of trial counsel.
Merits
Trial counsel’s performance was deficient when, given the circumstances of
the case, they failed to raise a due process/Eighth Amendment claim challenging
the fundamental fairness of conducting his penalty trial over ten years after his
conviction. Deck was prejudiced by this deficient performance given the
reasonable probability that the result of his sentencing proceeding would have been
different had counsel raised the claim. Because Deck has shown both deficient
performance and prejudice, I conclude that he received constitutionally ineffective
assistance of counsel during his third penalty-phase trial, rendering the result of
that trial unreliable. Strickland, 466 U.S. at 687.
Deck is therefore entitled to habeas relief on the claim raised in Ground
32(a) of his petition.
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D.

Ground 31 – Unconstitutional Delay
In Ground 31 of his petition, Deck contends that the passage of time

between the offense and his final penalty-phase trial – more than twelve years –
and between his conviction and final penalty trial – more than ten years – denied
him due process given the loss or weakening of mitigation evidence over this
period of time, and that being put to death after having been denied due process
constitutes cruel and unusual punishment. This claim was not raised in State court,
thereby making it subject to procedural default.
As cause to excuse his default, Deck contends that trial counsel was
ineffective by failing to raise the claim in State court. Such a claim of ineffective
assistance of counsel can constitute cause for default if it was pursued in State
court as an independent Sixth Amendment claim. Edwards, 529 U.S. at 451-52;
Williams, 311 F.3d at 897. As demonstrated above, however, Deck did not raise in
State court his claim that trial counsel was ineffective for failing to raise this due
process/Eighth Amendment claim. Deck argues that the procedural default of his
ineffectiveness claim is itself excused by the ineffective assistance of postconviction counsel for failing to raise the claim. See Edwards, 529 U.S. at 453
(defaulted ineffective-assistance-of-counsel claim asserted as cause for default of
another claim can “itself be excused if [petitioner] can satisfy the cause-andprejudice standard with respect to that claim.”) (emphasis in Edwards). For the
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reasons stated earlier, I agree.
As I have already determined, post-conviction counsel rendered ineffective
assistance by failing to raise Deck’s underlying claim that trial counsel was
ineffective for failing to argue at trial that the inordinate delay between conviction
and the final penalty proceeding denied him due process and his right to be free
from cruel and unusual punishment. Deck has therefore shown cause for his
procedural default of the underlying ineffective assistance claim. Further, I have
already found that trial counsel was indeed ineffective in their failure to raise the
due process/Eighth Amendment claim and that Deck was prejudiced thereby.
Therefore, Deck has shown cause for his failure to raise the underlying due
process/Eighth Amendment claim in State court. Moreover, for the reasons
discussed at length above, Deck was prejudiced by the underlying due process/
Eighth Amendment violation. Having shown cause and prejudice for his failure to
raise this constitutional claim in State court, a determination may be made on the
claim’s merits.
I have exhaustively discussed the merits of Deck’s constitutional claim
above and will not repeat my findings here. Suffice it to say, my conclusion
remains the same, that is, that the inordinate passage of time between Deck’s
conviction and his final penalty-phase trial deprived Deck of his constitutional
right to present mitigation evidence, thereby rendering his final trial fundamentally
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unfair. Indeed, Deck proceeded through a death penalty trial that was
fundamentally unfair from even before it began. Deck’s inability to present
mitigation evidence prevented the jury from adequately considering compassionate
or mitigating factors that might have warranted mercy. In the absence of such
consideration, imposition of the death penalty violates Deck’s right to be free from
cruel and unusual punishment.
Accordingly, Deck is entitled to habeas relief on the claim raised in Ground
31 of his petition.
IX. Conclusion
Capital proceedings must be “policed at all stages by an especially vigilant
concern for procedural fairness and the accuracy of factfinding.” Strickland, 466
U.S. at 704 (Brennan, J., concurring in part and dissenting in part).
While the passage of time does not and cannot lessen the loss and grief
suffered by the victims’ family, it nevertheless affected the fairness of the process
in this case and the factfinder’s ability to render a just penalty. Deck was deprived
of a constitutionally fair penalty trial, the result of which cannot stand. Because
the constitutional deficiencies cannot be cured and Deck cannot now undergo a
penalty-phase trial that comports with due process, I will order that Deck’s death
sentences be vacated and that he be sentenced to life in prison without the
possibility of parole.
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X. Certificate of Appealability
Under 28 U.S.C. § 2253, an appeal may not be taken to the court of appeals
from a final order denying habeas relief in a 28 U.S.C. § 2254 proceeding unless a
circuit justice or judge issues a Certificate of Appealability. 28 U.S.C. §
2253(c)(1)(A). To grant such a certificate, the justice or judge must find a
substantial showing of the denial of a federal constitutional right. 28 U.S.C. §
2253(c)(2). See Tiedeman v. Benson, 122 F.3d 518, 522 (8th Cir. 1997). A
substantial showing is a showing that issues are debatable among reasonable
jurists, a court could resolve the issues differently, or the issues deserve further
proceedings. Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997). I find that
reasonable jurists could not differ on any of the claims I denied, so I will deny a
Certificate of Appealability on those claims.
Accordingly,
IT IS HEREBY ORDERED that the amended petition of Carman L. Deck
for writ of habeas corpus [30] is granted as to the sentence of death only, based on
Claims 31 and 32(a) as discussed above, and denied in all other respects.
Petitioner’s death penalty is vacated. Because the constitutional deficiencies
cannot be cured and Deck cannot now be subjected to a penalty-phase trial that
comports with due process, he must be sentenced to life in prison without the
possibility of parole.
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An appropriate judgment granting the writ of habeas corpus is issued this
same date.

___________________________________
CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE

Dated this 13th day of April, 2017.

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