Johnson v. Steele

Filing 136

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that petitioner's renewed motion for leave to file amended petition (#101) and the renewed motion for evidentiary hearing (#94) as reasserted in (#121) are DENIED. IT IS FURTHER ORDERED that petitioner is granted 14 days from today to file any reply to respondent's suggestions in opposition to petitioner's motion for discovery.3 ( Response to Court due by 7/7/2017.) Signed by District Judge Stephen N. Limbaugh, Jr on 6/23/2017. (JMC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
KEVIN JOHNSON,
Petitioner,
v.
TROY STEELE,
Defendant,

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No. 4:13CV2046 SNLJ

MEMORANDUM AND ORDER
Currently pending before the Court is petitioner’s reassertion of motions that were
previously denied without prejudice (#121), which includes a request to reconsider
petitioner’s (1) motion for leave to amend his petition for habeas corpus (#100) and (2)
motion for an evidentiary hearing (#94), both of which were previously denied without
prejudice. Petitioner has also moved for discovery (#91).
I.

Background
Petitioner was convicted of murdering a police officer and sentenced to death.

Petitioner’s conviction became final on November 30, 2009. He then sought postconviction relief in state court, which was denied. Petitioner filed his petition for a writ
of habeas corpus under 28 U.S.C. § 2254 on September 30, 2014, on the day of the oneyear statute of limitations deadline under 28 U.S.C. § 2254(d). Petitioner raises 26 claims
in his petition.
On October 28, 2016, 25 months after the filing of the petition, plaintiff filed a
motion for leave to amend. He seeks leave to add the following new claims: (1) the

prosecutor harbored an institutional and personal bias against him that violated due
process; (2) his death sentence was a result of racial discrimination, and (3) standards of
decency have evolved to the point where petitioner’s death sentence no longer comports
with the Eighth Amendment. In the meantime, the original petition had been fully
briefed and was under submission to this Court. In connection with the motion to amend,
petitioner filed a motion to recall the mandate and a petition for a writ of habeas corpus
before the Missouri Supreme Court based on those same claims. Petitioner sought and
received a stay of this case in order to exhaust state remedies on the new claims. On
February 28, 2017, the Missouri Supreme Court denied petitioner’s motion to recall the
mandate and the petition for state habeas relief in a two-sentence form order. Petitioner
seeks to proceed with the three new claims in this federal habeas proceeding. Also
pending are petitioner’s reasserted motion for evidentiary hearing (#94) and motion for
discovery (#91). The respondent opposes the motions.
II.

Motion for Leave to Amend Petition (#94)
Claims in an amended habeas petition filed after the expiration of the one-year

limitations period may not be considered if they do not “relate back” to the date of the
original habeas petition. Mayle v. Felix, 545 U.S. 644, 655 (2005) (citing Fed. R. Civ. P.
15(c)).
Amended claims relate back to the original claims when both sets of claims arise
out of the “conduct, transaction, or occurrence set out B or attempted to be set out B in the
original pleading.” Fed. R. Civ. P. 15(c)(1)(B). For a habeas petition, in order for the
amended claims to relate back, they must be supported by facts of the same “time and
type” as those in the original pleading. Mayle, 545 U.S. at 650. “So long as the original

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and amended petitions state claims that are tied to a common core of operative facts,
relation back will be in order.” Id. at 664. Claims do not relate back “simply because
they relate to the same trial, conviction, or sentence as a timely filed claim.” Id. at 662.
This is so because, as the Supreme Court explained, “if claims asserted after the one-year
period could be revived simply because they relate to the same trial, conviction, or
sentence as a timely filed claim, AEDPA’s limitation period would have slim
significance.” Id.
The facts in the Mayle case provide a good example. Mayle involved an original
habeas petition claiming that the trial court’s admission of videotaped statements violated
the Confrontation Clause of the Constitution. The petitioner then sought leave to file an
amended petition to add a claim that his own pretrial statements to police were coerced
and therefore inadmissible at trial. The district court held that that the involuntary
statements to police did not arise out of the same conduct, transaction, or occurrence as
the videotaped interrogation of the witness and rejected the amendment as time-barred.
Id. at 652-53. The Ninth Circuit reversed, and, in its opinion reversing the Ninth Circuit,
the Supreme Court quoted the dissenting Circuit Judge, who noted that “while an
amendment offered to clarify or amplify the facts already alleged in support of a timely
claim may relate back…an amendment that introduces a new legal theory based on facts
different from those underlying the timely claim may not.” Id. at 653.
In this case, petitioner’s three new claims do not arise from the same conduct or
occurrence set out in the original petition. Petitioner seeks to add claims not of the same
“time and type” as the 26 claims in his original petition (see #35). Although several of

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the original 26 claims refer to the prosecutor’s allegedly unconstitutional actions (see
#35, Claims 1-4), none of those are of the same “time and type” as the new claim alleging
professional and personal bias by the prosecutor. Petitioner’s proposed Claim 27
summarizes --St. Louis County prosecuting attorney Robert McCulloch harbored a bias
against Petitioner that precluded a fair exercise of his duties as prosecutor.
Rather than disqualify himself and seek appointment of a special prosecutor
as required by due process and rules of professional conduct, he assumed
an even greater role by publicly expressing his “personal” interest in the
case, assigning himself as lead trial counsel, and choosing to seek the death
penalty without offering a lesser sentence to the defense.
(#101-1 at 1.) Proposed Claim 27 concludes that “McCulloch was biased in favor of
police and against anyone accused, rightly or wrongly, of committing violence against a
police officer. Petitioner was denied his Eighth and Fourteenth Amendment rights to be
tried by an impartial prosecutor.” (Id. at 9.) That claim introduces a new legal theory
and new facts. The other two claims---on racial discrimination and unconstitutionality of
the death penalty---do not even arguably relate to any of the 26 original claims. Thus,
petitioner’s claims do not relate back to the filing of the original petition and are
untimely.
The Court notes that Section 2244(d)’s limitations period may also run from “the
date on which the factual predicate of the claim or claims presented could have been
discovered through the exercise of due diligence.” 28 U.S.C. § 2244(d)(1)(D). In order
for the amended petition to be timely under that subsection, the “factual predicates” of
petitioner’s new claims must be those that could only have been discovered after October
28, 2015. See McQuiggin v. Perkins, 133 S. Ct. 1924, 1929 (2013) (“If the petition

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alleges newly discovered evidence, however, the filing deadline is one year from ‘the
date on which the factual predicate of the claim or claims presented could have been
discovered through the exercise of due diligence.’”)(quoting 28 U.S.C. § 2244(d)(1)(D)).
To the extent petitioner contends that the “factual predicate” of the three new
claims could not have been discovered through the exercise of due diligence until after
October 28, 2015, that contention is without merit
Petitioner bases his first proposed claim---that the prosecutor harbored an
institutional and personal bias against him--- on the prosecutor’s “personal and
professional history, his pattern of partiality in favor of law enforcement, and his
handling of the grand jury proceedings and subsequent developments following the fatal
shooting of Michael Brown in Ferguson, Missouri in August 2014.” (#101 at 2.)
Counsel has been actively involved in this case since 2013, more than a year before the
Ferguson shooting. The prosecutor’s professional and personal history were certainly
available to petitioner at all times. As for the aftermath of the Michael Brown shooting
and the prosecutor’s handling of the grand jury investigation, the grand jury investigation
was completed on November 24, 2014 and was the frequent subject of national news
reports. See Doe v. McCulloch, 835 F.3d 785, 786 (8th Cir. 2016) (discussing timing of
investigation and prosecutor’s press conference and release of evidence to media).
Petitioner’s own citations include news articles that are dated August 2014, December
2014, January 2014, and April 2015. (See #101-1 at n.2, n.7, n.10, n.12.) The “factual
predicate” of this claim was therefore available to petitioner for more than two years
before petitioner filed his motion to amend, and certainly well before October 28, 2015.

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As for petitioner’s other new claims --- that his death sentence was a result of
racial discrimination, and that standards of decency have evolved to the point where
petitioner’s death sentence no longer comports with the Eighth Amendment --- petitioner
cites to twenty-year-old studies and another “ongoing” study dated March 26, 2014 in
support of the discrimination claim. He then cites to state trends repealing the death
penalty between 2007 to 2013 and a dissent from Justice Breyer dated June 29, 2015
(Glossip v. Gross, 135 S.Ct. 2726 (2015)) for the Eighth Amendment claim.

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factual predicate of the claims therefore could have been discovered through the exercise
of due diligence well before October 28, 2015.

Petitioner’s claims are therefore untimely under any analysis of the statute of
limitations and the relation-back doctrine, and his motion to amend will be denied.
III. Motion for Evidentiary Hearing (#94)
Petitioner also requests renewal of his motion to conduct an evidentiary
hearing (#94), which this Court denied without prejudice (#105), stating, “The
Court will determine whether an evidentiary hearing is warranted after it completes
its review of the petition, the respondent’s response, and other materials submitted
by the parties. . ..” For the same reasons, the Court declines to rule on the motion
for evidentiary hearing at this time, will deny the motion without prejudice, and at
the appropriate time will consider the matter sua sponte.

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IV.

Motion for Discovery (#91)
Petitioner motion for discovery (#91), filed September 19, 2016, seeks discovery

on several claims presented in the original petition. Because respondent filed no response
in opposition at the time, petitioner argues that respondent is now precluded from
objecting. This Court disagrees. Respondent was granted extensions of time until
November 18, 2016 to respond. But on October 28, 2016, petitioner filed a motion to
stay the proceedings in order to file a supplemental state post-conviction action. That
motion was granted, and the Missouri Supreme Court denied the supplemental state
action by order on February 28, 2017. The stay, however, was not lifted until April 13,
2017. Nearly all the delay, then, was the result of the stay. Because only a short time has
elapsed since the stay was lifted, petitioner will suffer no prejudice in allowing
respondent to file suggestions in opposition to the motion for discovery, and petitioner
did so on June 2, 2017. Petitioner is granted 14 days from today to file any reply to
respondent’s suggestions in opposition.

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Accordingly,
IT IS HEREBY ORDERED that petitioner’s renewed motion for leave to file
amended petition (#101) and the renewed motion for evidentiary hearing (#94) as
reasserted in (#121) are DENIED.
IT IS FURTHER ORDERED that petitioner is granted 14 days from today to
file any reply to respondent’s suggestions in opposition to petitioner’s motion for
discovery.
Dated this 23rd day of June, 2017.

STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE

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