Johnson v. Stelle

Filing 30

ORDER denying 10 Petition for Writ of Habeas Corpus. A certificate of appealability shall not issue. Signed on 2/20/13 by District Judge Greg Kays. (Francis, Alexandra)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
ERNEST JOHNSON,
Petitioner,
v.
TROY STEELE,
Respondent.

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Case No. 11-08001-CV-W-DGK

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
Currently pending before the Court are Petitioner Ernest Johnson’s “Petition for Writ of
Habeas Corpus Pursuant to 28 U.S.C. § 2254” and Respondent’s “Response to Order to Show
Cause Why the Petition for Habeas Corpus Should Not be Granted.” (Docs. 10, 16). Having
carefully considered both parties’ arguments and for the reasons stated herein, Petitioner’s
request is denied.
Background1
On May 3, 1994, Petitioner Ernest Johnson (“Johnson”) was charged with three counts of
first degree murder, one count of armed criminal action, and one count of first degree robbery for
actions related to the robbery of a Columbia-area Casey’s convenient store during which Johnson
allegedly beat three store employees to death with a hammer. (L.F. 39-45; Resp. Exh. 15).2 On

1

Much of this background is taken from Petitioner’s very thorough Petition for Writ of Habeas Corpus (Doc. 10).
In citing material in the record, the Court uses parallel citations, first citing to Petitioner’s system of reference to
the record below and then citing to Respondent’s exhibits. Citation to Petitioner’s system of reference will be
reflected as follows: First Trial Transcript (“Tr. ___”); First Direct Appeal Legal File (“L.F. ___”); First Post
Conviction Hearing Transcript (“1st PCR Tr. ___”); First Post-Conviction Legal File (“1st PCR L.F. ___”); Second
Penalty Phase Trial Transcript (“2nd Sen. Tr. ___”); Second Direct Appeal Legal File (“2nd L.F. ___”); Second
Post-Conviction Hearing Transcript (“2nd PCR Tr. ___”); Second Post-Conviction Legal File (“2nd PCR L.F.
___”); Third Penalty Phase Trial Transcript (“3rd Sen. Tr. ___”); Third Direct Appeal Legal File (“3rd L.F. ___”);
Third Post- Conviction Hearing Transcript (“3rd PCR Tr. ___”); Third Post-Conviction Legal File (“3rd L.F. ___”).
Any exhibits from the three jury trials will be designated as (“1st Exh. No. ___ at ___); (“2nd Exh. No. ___ at ___”)
and (“3rd Exh. No. ___ at ___”) respectively. Any exhibits from the 3 post-conviction hearings will be referenced as
2

May 3, 1994, the State also filed its Notice of Intent to Seek the Death Penalty. (L.F. 46-48;
Resp. Exh. 15).
Johnson’s first jury trial commenced on May 10, 1995. (Tr. 471; Resp. Exh. 3). On the
first day of the trial, the State dropped the armed criminal action and robbery counts. (Tr. 47475; Resp. Exh. 3). On May 16, the jury found Johnson guilty on all remaining counts. (Tr.
2413-14; Resp. Exh. 11). The penalty phase commenced on May 17, 1995, and one day later, on
May 18, the jury declared death as the punishment for each of the three murder counts. (Tr.
2432; Resp. Exh. 11; Tr. 2672-75; Resp. Exh. 12). On June 19, 1995, a Missouri state court
sentenced Johnson to death by lethal injection. (Tr. 2704; Resp. Exh. 12; L.F. 707-09; Resp.
Exh. 18).
Johnson timely appealed his sentence on June 19, 1995. (L.F. 713; Resp. Exh. 18). He
also timely filed Rule 29.153 motions (“first 29.15 motions”).4 (1st PCR L.F. 13-150; Resp. Exh.
19). A Missouri state court conducted an evidentiary hearing on May 21, 1996 (1st PCR Tr. 1;
Resp. Exh. 13) and denied post-conviction relief on all grounds on August 16, 1996. (1st PCR
L.F. 225-34; Resp. Exh. 20).
The Missouri Supreme Court decided Johnson’s consolidated appeal on May 26, 1998,
affirming the murder convictions but vacating and remanding the death sentences because the
penalty phase counsel was ineffective for failing to call an engaged expert witness to testify
about Johnson’s mental state. State v. Johnson, 968 S.W.2d 686, 699, 702 (Mo. 1998) (en banc)
(“Johnson I”).

(“1st PCR Exh. No. ___ at ___”); (“2nd PCR Exh. No. ___ at ___”); (3rd PCR Exh. No. ___ at ____”); and Exhibits
attached to this petition (“Exh. __ at __”). Citation to Respondent’s material will reference Respondent’s Exhibits
1-62.
3
In June 1995, Rule 29.15 provided for the stay of the direct appeal while the 29.15 motion was litigated. See
Historical Notes, Mo. R. Crim. P. 29.15. An appeal of the 29.15 motion was then consolidated with the direct
appeal. The consolidated appeals approach was abolished by a rule revision in 1996 which provided that the 29.15
proceeding is litigated after the direct appeal has concluded. See Mo. R. Crim. P. 29.15(b).
4
Johnson filed an amended 29.15 motion on December 28, 1995. (1st PCR L.F. 13-150; Resp. Exh. 13).

2 

A second penalty trial commenced on March 8, 1999. (2nd Sen. Tr. 43; Resp. Exh. 25).
On March 12, the jury assessed and declared death as the punishment for all three murder counts.
(2nd Sen. Tr. 1378-83; Resp. Exh. 26). On April 19, 1999, a Missouri state court formally
sentenced Johnson to death by lethal injection. (2nd Sen. Tr. 1394; Resp. Exh. 26; 2nd L.F. 25861; Resp. Exh. 28).
On April 28, 1999, Johnson again filed a timely notice of appeal. (2nd L.F. 262-63;
Resp. Exh. 28). On June 13, 2000, the Missouri Supreme Court affirmed the death sentences.
State v. Johnson, 22 S.W.3d 183 (Mo. 2000) (en banc) (“Johnson II”). The United States
Supreme Court denied Johnson’s petition for writ of certiorari on October 10, 2000. Johnson v.
Missouri, 531 U.S. 935 (2000).
On October 30, 2000, Johnson filed a pro se 29.15 motion (“second 29.15 motion”) (2nd
PCR L.F. 1, 6-11; Resp. Exh. 34). 5 A Missouri state court held an evidentiary hearing on
November 28, 2001 (2nd PCR Tr. 5; Resp. Exh. 34) and denied post-conviction relief on all
grounds on March 22, 2002. (2nd PCR L.F. 421-62; Resp. Exh. 36).
Johnson filed a notice of appeal for his second 29.15 motion on May 1, 2002. (2nd PCR
L.F. 466-69; Resp. Exh. 36). On April 22, 2003, the Missouri Supreme Court reversed the
motion court’s denial of Johnson’s second 29.15 motion based on the United States Supreme
Court’s then recent decision in Atkins v. Virginia, 536 U.S. 304 (2002) and remanded for a new
penalty phase trial. Johnson v. State, 102 S.W.3d 535 (Mo. 2003) (en banc) (“Johnson III”).
Based on Atkins, the Missouri Supreme Court held that a defendant who can prove mental
retardation by a preponderance of the evidence, as defined in Mo. Rev. Stat. § 565.030.6, cannot
be subject to the death penalty. Johnson III, 102 S.W.3d at 536, 540. Because Atkins evidence
existed but was not adequately presented during Johnson’s second penalty trial, and because the

5

Johnson filed an amended motion on March 19, 2001. (2nd PCR L.F. 2, 38-261; Resp. Exhs. 34, 35).

3 

jury was not instructed that the death penalty cannot be imposed if a defendant is mentally
retarded, the Missouri Supreme Court found remand was necessary. Johnson III, 102 S.W.3d at
541.
Johnson’s third penalty trial commenced on May 4, 2006. (3rd Sen. Tr. 83; Resp. Exh.
42). On May 10, the jury returned its verdict assessing and declaring death on each count. (3rd
Sen. Tr. 1815-18; Resp. Exh. 44). On June 12, 2006, the court sentenced Johnson to death by
lethal injection. (3rd Sen. Tr. 1828-29; Resp. Exh. 44; 3rd L.F. 326-30; Resp. Exh. 46).
Johnson filed a timely notice of appeal on June 19, 2006. (3rd L.F. 331-32; Resp. Exh.
46). On February 19, 2008, the Missouri Supreme Court affirmed the death sentences. State v.
Johnson, 244 S.W.3d 144 (Mo. 2008) (en banc) (“Johnson IV”). The United States Supreme
Court denied Johnson’s petition for writ of certiorari on October 6, 2008. Johnson v. Missouri,
555 U.S. 872 (2008).
Johnson filed a pro se 29.15 motion (“third 29.15 motion”) on May 16, 2008. (3rd PCR
L.F. 5-10; Resp. Exh. 55).6 A Missouri trial court held an evidentiary hearing from June 29,
2009 to July 1, 2009. (3rd PCR Tr. 1, 764-65; Resp. Exhs. 53, 54). On September 16, 2009, the
court denied post-conviction relief on all grounds. (3rd PCR L.F. 336-77; Resp. Exh. 57).
Johnson timely filed a notice of appeal on October 22, 2009. (3rd PCR L.F. 383-84;
Resp. Exh. 57). On March 1, 2011, the Missouri Supreme Court affirmed the motion court’s
denial of 29.15 relief. Johnson v. State, 333 S.W.3d 459 (Mo. 2011) (en banc) (“Johnson V”).
The Missouri Supreme Court denied rehearing on March 29, 2011. See Johnson V, 333 S.W.3d
at 459.
Johnson now petitions this Court for a writ of habeas corpus under 28 U.S.C. § 2254,
asserting eight claims, seven of which attack the imposition of the three death sentences at his

6

Johnson filed an amended 29.15 motion on August 19, 2008. (3rd PCR L.F. 52-176; Resp. Exh. 55).

4 

third and most recent penalty trial and one of which alleges ineffective assistance of counsel at
the guilt phase of his trial.
Standard
“The writ of habeas corpus stands as a safeguard against imprisonment of those held in
violation of the law.” Harrington v. Richter, 131 S. Ct. 770, 780 (2011). Pursuant to the
Antiterrorism and Effective Death Penalty Act (“AEDPA”), a federal habeas court shall not grant
an application for a writ of habeas corpus with respect to any claim that was adjudicated on the
merits in a state court proceeding, unless adjudication of the claim:
(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the
facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d). Under the exhaustion doctrine, a federal habeas court may only grant a
writ application if the petitioner has first submitted his claims to the lower state courts and
exhausted his remedies there. 28 U.S.C. § 2254(b)(1)(A); Forest v. Delo, 52 F.3d 716, 719 (8th
Cir. 1995) (“A state prisoner seeking a writ of habeas corpus from a federal court must first fairly
present his claims to the state courts in order to meet the exhaustion requirement of 28 U.S.C. §
2254(b).”).
Accordingly, this Court shall defer to the decision of the state court unless it finds that the
decision was contrary to or involved an unreasonable application of federal law as determined
by the United States Supreme Court or involved an unreasonable determination of facts. The
“contrary to” and “unreasonable application of” provisions of Section 28 U.S.C. § 2254(d)(1)
have independent meaning and must be analyzed separately. Penry v. Johnson, 532 U.S. 782,
792 (2001); Williams v. Taylor, 529 U.S. 362, 404 (2000).
5 

The “contrary to” provision applies “if the state court arrive[s] at a conclusion opposite to
that reached by the Supreme Court on a question of law, or reache[s] a decision contrary to
Supreme Court precedent when confronting facts that [are] materially indistinguishable.”
Jackson v. Norris, 651 F.3d 923, 925 (8th Cir. 2011); see also Williams, 529 U.S. at 405-06
(finding that a state-court decision will be contrary to clearly established Supreme Court
precedent if “the state court applies a rule that contradicts the governing law set forth in [the
Supreme Court’s] cases” or if “the state court confronts a set of facts that are materially
indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result
different from [Supreme Court] precedent”).
The “unreasonable application of” provision applies “if the state court identifies the
correct governing legal rule7 from [United States Supreme Court] cases but unreasonably applies
it to the facts of the particular state prisoner’s case.” Williams, 529 U.S. at 407. For this
provision, it is important to note that “an unreasonable application of federal law is different
from an incorrect application of federal law.” Williams, 529 U.S. at 410 (emphasis in original).
A federal habeas court may not issue a writ simply because the court concludes that the statecourt decision applied clearly established federal law erroneously or because the federal habeas
court would reach a different conclusion from the state court. Williams, 529 U.S. at 411. Rather,
the state court’s application must also be objectively unreasonable. Penry, 532 U.S. at 793;
Williams, 529 U.S. at 411-12. A similar decision by another circuit court may be used to
establish the reasonableness of a state court decision. Colvin v. Taylor, 324 F.3d 583, 588 (8th
Cir. 2003). When a state court rules summarily on a claim without explanation of the basis for

7

Furthermore, 28 U.S.C. § 2254(d)(1) restricts the source of the clearly established law to the Supreme Court’s
“holdings,” as opposed to the dicta. Williams v. Taylor, 529 U.S. 362, 412 (2000).

6 

its ruling, a habeas petitioner must demonstrate that there was no reasonable basis for that ruling.
Harrington, 131 S. Ct. at 784.
For both the “contrary to” clause and the “unreasonable application” clause, clearly
established federal law is the law as it existed on the date of the last state court ruling on the
merits. Greene v. Fisher, 132 S. Ct. 38, 44-45 (2011). The deference required by 28 U.S.C.
§2254(d) applies to the decision of the post-conviction review court as well as to the decision of
the Missouri Supreme Court affirming it. See Weaver v. Bowersox, 241 F.3d 1024, 1031 (8th
Cir. 2001) (giving AEDPA deference to the trial court decision and the Missouri Supreme Court
decision affirming it).
Habeas relief can also be granted if the lower state decision “was based on an
unreasonable determination of the facts . . .” under 28 U.S.C. § 2254(d)(2). A determination of
fact is not unreasonable “merely because the federal habeas court would have reached a different
conclusion in the first instance.” Wood v. Allen, 130 S. Ct. 841, 849 (2010). Additionally, the
existence of some contrary evidence in the record does not suffice to show that the state court
determination of fact was unreasonable. See id. at 850. To be entitled to relief based on an
unreasonable determination of the facts, a habeas petitioner must show that the determination of
the facts was unreasonable by clear and convincing evidence. Miller-El v. Dretke, 545 U.S. 231,
240 (2005).
Many of Johnson’s claims allege ineffectiveness on behalf of trial counsel and are,
therefore, governed by the standard set forth in the Supreme Court’s decision in Strickland v.
Washington which laid out a two-part test for deciding a claim of ineffective assistance of
counsel. 466 U.S. 668 (1984). In order to succeed on a claim of ineffective assistance of
counsel, a prisoner must first show that “counsel’s performance was deficient . . . [meaning] that

7 

counsel made errors so serious the counsel was not functioning as the ‘counsel’ guaranteed the
defendant by the Sixth Amendment.

Second, the defendant must show that the deficient

performance prejudiced the defense . . . [meaning] that counsel’s errors were so serious as to
deprive the defendant of a fair trial . . . .” Id. at 687. “An ineffective assistance of counsel claim
is a mixed question of law and fact,” McReynolds v. Kemna, 208 F.3d 721, 723 (8th Cir. 2000),
and failure to satisfy both prongs is fatal to the claim. Pryor v. Norris, 103 F.3d 710, 713 (8th
Cir. 1997). In reviewing claims of ineffective assistance of counsel for federal habeas review,
courts must be “doubly” deferential on the issue of counsel’s competence. Harrington, 131 S.Ct.
at 788 (“Establishing that a state court’s application of Strickland was unreasonable under §
2254(d) is all the more difficult. The standards created by Strickland and § 2254(d) are both
‘highly deferential,’ and when the two apply in tandem, review is ‘doubly’ so.”) (internal
citations omitted).
Discussion
As a preliminary matter, the Court finds Johnson’s petition is timely filed under 28
U.S.C. § 2244(d).

Accordingly, the Court will review each of Johnson’s eight claims to

determine whether he is entitled to relief.
I.

Claim No. 1: Imposition of Death on a Mentally Retarded Defendant
In his first claim, Petitioner Johnson argues that imposing a death sentence on a mentally

retarded8 defendant is contrary to the United States Supreme Court ruling in Atkins v. Virginia,
536 U.S. 304 (2002) and denies him of his right to be free from cruel and unusual punishment as

8

As a preliminary matter, the Court notes that the term “intellectual disability” is commonly preferred to “mental
retardation,” and the American Association on Intellectual and Developmental Disabilities has defined them to the
mean the same thing. Moreover, the World Health Organization’s International Statistical Classification of Diseases
and Related Health Problems and the DSM-V are expected to replace the term “mental retardation” with
“intellectual development disorder.” However, because the term “mental retardation” and “mentally retarded” are
used in the parties’ briefing, the relevant case law, and the procedural history of the case, this Court will use those
terms here.

8 

guaranteed by the Eighth and Fourteenth Amendments to the United States Constitution.
Johnson alleges that he proved by a preponderance of the evidence that he is mentally retarded at
the third penalty phase of his trial under the Atkins standard and the statutory definition set forth
in Missouri law, and that the Missouri Supreme Court failed to appropriately apply Atkins to the
specific facts of his case to overturn his death sentences.
Specifically, Johnson argues that on appeal of his death sentences, the Missouri Supreme
Court “ignored the scientific evidence presented at trial, unnecessarily credited the State’s
misleading cross-examination as evidence, and reached conclusions that are unreasonable in light
of the record presented at trial.” (Doc. 10, at 36-37). 9 Johnson further maintains that the
Missouri Supreme Court plainly ignored the impact of objective science, notably the medicallyaccepted Flynn effect,10 on Johnson’s scores of mental retardation that were above the mentally
retarded range.
The Supreme Court’s decision in Atkins established that the Eighth Amendment to the
United States Constitution prohibits the death penalty for an individual who is mentally retarded.
536 U.S. 304 (2002). While establishing the basic prohibition against the imposition of the death
penalty on the mentally retarded, the Court left the mechanisms for establishing mental
retardation to the states with the guiding principle that “clinical definitions of mental retardation
require not only subaverage intellectual functioning, but also significant limitations in adaptive

9

Insofar as Johnson alleges that the Missouri Supreme Court failed to appropriately find him mentally retarded
under Missouri law, his claim must fail because a federal habeas court may not disagree with a state court on its
interpretation of its own state law. Arnold v. Dormire, 675 F.3d 1082, 1086 (8th Cir. 2012); Schleeper v. Groose, 36
F.3d 735, 737 (8th Cir. 1995). However, because Johnson notes that he is not challenging the Missouri Supreme
Court’s application of its own law (Doc. 21, at 9, 10), the Court will not address this argument.
10
“The Flynn effect, as described by Dr. Keyes at trial, accounts for the gradual inflation of I.Q. scores for
individuals that occur over time.” (Doc. 10, at 44-45). According to Petitioner, individual I.Q. scores must be
evaluated with the Flynn effect taken into account. When taking into account the Flynn effect, Petitioner maintains
that “all but one of [Johnson’s] reliable I.Q. tests would have been well within the understanding of mental
retardation” as set forth by the American Association on Mental Retardation (“AAMR”) and the American
Psychiatric Association (“APA”).” (Doc. 10, at 45).

9 

skills such as communication, self-care, and self-direction that became manifest before age 18.”
Id. at 318.
Consistent with Atkins and prevailing clinical definitions, the Missouri General Assembly
adopted Mo. Rev. Stat. § 565.030.6 which defines mental retardation as follows:
[A] condition involving substantial limitations in general functioning
characterized by significantly subaverage intellectual functioning with continual
extensive related deficits and limitations in two or more adaptive behaviors such
as communication, self-care, home living, social skills, community use, selfdirection, health and safety, functional academics, leisure and work, which
conditions are manifested and documented before eighteen years of age.
Mo. Rev. Stat. § 565.030.6. Johnson now argues that the Missouri Supreme unreasonably
applied the facts developed in state court in denying Johnson’s claim for relief based on mental
retardation. See 28 U.S.C. § 2254(d)(2).
The 28 U.S.C. § 2254(d)(2) standard is a “difficult standard[] for the habeas petitioner to
overcome.” Beck v. Bowersox, 257 F.3d 900, 901 (8th Cir. 2001). While, evaluation of a
petitioner’s 28 U.S.C. § 2254(d)(2) claim “require[s] meaningful federal court review of the
evidentiary record considered by the state courts,” Beck, 257 F.3d at 901, in considering whether
the state court’s decision satisfies this deferential standard, “a determination of a factual issue
made by a State court shall be presumed to be correct.” § 2254(e)(1); Beck, 257 F.3d at 901.
However, where a state court decision rests upon a determination of facts that lies against the
clear weight of the evidence, the decision is, by definition, a decision that is “so inadequately
supported by the record as to be arbitrary and therefore objectively unreasonable.” Ward v.
Sternes, 334 F.3d 696, 704 (7th Cir. 2003) (internal quotation omitted).
In reviewing Johnson’s current Atkins claim, this Court must now determine whether
“viewing the evidence in the light most favorable to the prevailing party (the State), any rational
trier of fact could have found [the defendant] not mentally retarded by a preponderance of the
10 

evidence.” Hooks v. Workman, 689 F.3d 1148, 1166 (10th Cir. 2012). Finding that a rational
trier of fact could find that Johnson was not mentally retarded, this Court denies Johnson’s
Atkins’ claim.
The Missouri Supreme Court issued a detailed opinion reviewing the sufficiency of the
evidence to support the jury’s conclusion that Johnson did not meet his burden of showing
mental retardation by the preponderance of the evidence. Johnson IV, 244 S.W.3d at 151-156.
In this opinion, the Missouri Supreme Court evaluated all the evidence presented on Johnson’s
intellectual functioning, categories of adaptive behavior, and expert opinions.
In reviewing the evidence considered by the jury at Johnson’s third penalty phase of trial,
the Missouri Supreme Court first noted problems with the credibility of Johnson’s expert
witnesses. Notably, the court discussed how the jury heard evidence that Johnson’s two experts,
Dr. Keyes and Dr. Smith, had a history of always testifying for the defense in death penalty
cases. Id. at 156. The court also considered evidence that, in his initial evaluation in 2006, Dr.
Smith did not find Johnson mentally retarded and that he changed his opinion in 1998 after
reviewing tests conducted by Dr. Keyes. Id.
The Missouri Supreme Court next focused on conflicting evidence regarding Johnson’s
I.Q and adaptive functioning.

Discussing the results of Johnson’s multiple I.Q. tests, the

Missouri Supreme Court observed the inconsistency in scores which, in its opinion, undermined
Johnson’s experts who opined that he was mentally retarded. Id. at 152-56. Specifically, the
Missouri Supreme Court noted, “the jury also heard evidence that Johnson had multiple I.Q.
scores that were above the mentally retarded range and that his intellectual functioning was not
subaverage.” Id. at 156. Moreover, the Missouri Supreme Court considered that the jury had
seen a recording of an interview with Johnson ten years after the crime in which he recalled

11 

details about the crime and explained decisions he had made regarding it. Id. Finally, the
Missouri Supreme Court found that there was sufficient evidence for a jury to conclude that
Johnson did not have continual deficits in two or more categories of adaptive behavior. Id.
Ultimately, the Missouri Supreme Court concluded that:
Because of this conflicting evidence, the trial court did not err in overruling
Johnson’s motions for a directed verdict. Deference should be given to the jury,
and viewing the evidence in the light most favorable to the judgment, there was
sufficient evidence from which a reasonable juror could have found that Johnson
did not prove by a preponderance of the evidence that he suffered from mental
retardation.
Id. at 155-156.
The evidence on mental retardation in Johnson’s case is, as the Missouri Supreme Court
held, conflicting.

As the United States Supreme Court has instructed, “a state-court decision

rejecting a sufficiency challenge may not be overturned on federal habeas unless the decision
was objectively unreasonable.” Parker v. Matthews, 132 S. Ct. 2148, 2152 (2012) (internal
quotation omitted). This is a “twice-deferential” standard of review since “it is the responsibility
of the jury—not the court—to decide what conclusions should be drawn from evidence admitted
at trial” and a state court’s affirmance of the jury’s decision on that question must be reviewed
only for objective reasonableness. Id.
Thus, the question is only whether any rational trier of fact could have reached the same
conclusion as the jury in Johnson’s case. The Court finds that it could. While no experts
testified at trial that Johnson was not mentally retarded, and two testified that he was, “expert
testimony does not trigger a conclusive presumption of correctness.” Id. at 2153. Moreover, a
jury is free to find that the expert testimony is inadequate to establish mental retardation. See id.
Because there was sufficient evidence supporting a finding that Johnson was not mentally
retarded, including prior I.Q. scores, adaptive behavior, video footage of him subsequent to the
12 

murders, and credibility issues surrounding Johnson’s experts, the Missouri Supreme Court’s
decision upholding Johnson’s jury verdict imposing the death penalty was not objectively
unreasonable under 28 U.S.C. § 2254(d).
II.

Claim No. 2: Counsel’s Failure to Adequately Investigate and Present Evidence
of Mental Retardation
In his second claim, Johnson alleges trial counsel was ineffective during his third penalty

phase for not adequately investigating and presenting evidence in support of a mental retardation
defense. Specifically, Johnson argues that his court-appointed counsel failed to thoroughly
investigate their primary witness, Dr. Denis Keyes, who was charged with establishing mental
retardation but who, more than a year earlier, had been judicially determined to be “biased” and
“unreliable” in his testimony before the Circuit Court of St. Louis County, Missouri. See
Goodwin v. State, 191 S.W.3d 20, 32-33 (Mo. 2006) (discussing the motion court’s rejection of
Dr. Keyes’ expert testimony). Moreover, Johnson alleges that despite trial counsel’s awareness
that Dr. Keyes was unreliable, difficult, 11 lacked clinical expertise and, at the time of his
testimony, was not licensed to practice in any state, counsel chose to move forward with his
testimony.12

11

In seeking a continuance of the trial, counsel informed the trial court of its difficulties with Dr. Keyes, notifying
the court that Dr. Keyes was “eccentric,” refused to come to trial any day but Friday, and was “dedicated more to his
students than he is to any case he’s working on.” (3rd Sen. Tr. 59-61; Resp. Exh. 42).
12
Respondent argues that Johnson appears to present two claims here: first, that trial counsel was ineffective for not
presenting additional evidence on his mental retardation, and second, that trial counsel was ineffective for choosing
Dr. Keyes as opposed to another, more qualified expert. Johnson advanced the first argument on appeal to the postconviction review court which rejected this claim on the merits after an evidentiary hearing. Only the narrower
claim, that counsel erred in choosing Dr. Keyes as its expert, was presented to the Supreme Court, and, therefore, is
the only claim preserved for review by this Court. See Arnold, 675 F.3d at 1086-1087 (holding that claims raised in
post-conviction motion but not the appeal of the denial of that motion are barred from review, and alleged
ineffective representation by post-conviction appellate counsel cannot be cause to excuse the default); Flieger, 16
F.3d at 885 (finding that a habeas petitioner must present the same factual and legal theory of claim to a federal
court that he preserved in state court litigation). Petitioner does not contest that the only issue properly before this
Court is whether Johnson’s trial counsel provided ineffective assistance of counsel when they chose to present the
testimony of Dr. Keyes as the primary mental health expert. (Doc. 21, at 22).

13 

Johnson’s claim of ineffective assistance of counsel is governed by the Supreme Court’s
decision in Strickland v. Washington. 466 U.S. 668 (1984). Johnson argues that the Missouri
Supreme Court correctly identified the appropriate Strickland standard but applied the standard
in an unreasonable manner in light of the facts of his case. Most notably, Johnson alleges that
the Missouri Supreme Court erred in finding that trial counsel’s decision to utilize Dr. Keyes as
its expert was not deficient performance and did not prejudice him.
In reviewing Johnson’s claim for ineffective assistance of counsel, this Court must
consider the highly deferential standard of Strickland in conjunction with the highly deferential
standard of 28 U.S.C. § 2254(d). See Harrington, 131 S. Ct. at 785-792 (“The pivotal question is
whether the state court’s application of the Strickland standard was unreasonable. This is
different from asking whether defense counsel’s performance fell below Strickland’s standard. . .
. A state court must be granted a deference and latitude that are not in operation when the case
involves review under the Strickland standard itself.”).
Here, the Missouri Supreme Court rejected Johnson’s claim of ineffective assistance of
counsel based on Dr. Keyes’ testimony, finding that the choice to use Dr. Keyes as an expert
witness was a reasonable strategic decision. Johnson V, 333 S.W.3d at 463-466. First, the
Missouri Supreme Court noted that “[g]enerally, the selection of witnesses and the introduction
of evidence are questions of trial strategy and virtually unchallengeable.” Id. at 463-64 (citing
State v. Kenley, 952 S.W.2d 250, 266 (Mo. 1997) (en banc)). The Missouri Supreme Court went
on to discuss Dr. Keyes qualifications, expertise, and credibility including (1) his Ph.D. in
special education; (2) citation to his work by the United States Supreme Court in Atkins v.
Virginia; and (3) the fact that another expert changed his opinion after learning of Dr. Keyes’
finding that Johnson was mentally retarded. Id. at 464-65. The Missouri Supreme Court also

14 

noted that the jury was unaware of the Goodwin opinion, issued after jury selection, finding Dr.
Keyes’ testimony unpersuasive in another case.

Id.

It further distinguished Dr. Keyes’

testimony in Johnson’s case from that which was rejected in Goodwin, noting that in Johnson’s
case, Dr. Keyes’ testimony was at least “arguably . . . based on objective factors.” Id. at 464.
The Missouri Supreme Court also rejected Johnson’s arguments that Dr. Keyes’
insistence on scheduling his testimony around his teaching schedule and his correcting himself
during testimony indicated that he was unprepared or unreliable. Id. Specifically, the court
noted that each time Dr. Keyes misspoke, he corrected his misstatements either on his own or
with the assistance of counsel. Id.
Having provided ample reasoning for its decision to deny Johnson’s claim for ineffective
assistance of counsel on this claim, this Court finds that the Missouri Supreme Court did not
unreasonably apply the Strickland standard to facts of this case. Accordingly, this Court finds
that the Missouri Supreme Court’s decision to reject Johnson’s ineffective assistance of counsel
claim with regard to Dr. Keyes’ expert testimony was not contrary to clearly established federal
law or an unreasonable determination of facts in light of the evidence presented in state court.
III.

Claim No. 3: Counsel’s Failure to Suppress Incriminating Statements
In Johnson’s third claim, he argues that defense counsel at his third penalty trial was

ineffective for failing to object to the State’s introduction of a videotaped interrogation during
which Johnson was asked about facts of the case. This failure, Johnson argues, violated his
Fifth, Sixth, and Fourteenth Amendment rights.
Prior to Johnson’s third penalty phase trial, the trial court granted the State’s request, over
Johnson’s objections, to have private psychologist Dr. Gerald Heisler interview Johnson for the
purpose of evaluating his claim of mental retardation according to RSMo § 565.030.6. The trial

15 

court also ordered that Dr. Heisler videotape the examination but that he not make Johnson
aware of the recording. Johnson now argues that Dr. Heisler’s examination went beyond the
scope of the trial court’s order to “evaluate defendant’s claim of mental retardation under Section
565.030.6, Supp. 2003, RSMo,” (3rd L.F. 209; Resp. Exh. 46), and improperly focused on the
circumstances of the convicted offenses.
Johnson also maintains that his trial counsel was ineffective in failing to object to the
jury’s viewing of the entire taped interview. Specifically, Johnson alleges that admitting Dr.
Heisler’s full interview, including Johnson’s admissions about the circumstances of the crime
(e.g., that he acted alone and used a gun and hammer), violated his Fifth Amendment rights
against self-incrimination because he was not advised of his rights pursuant to Miranda v.
Arizona, 384 U.S. 436 (1966) prior to the interview. In support of his argument, Johnson cites
Estelle v. Smith, 451 U.S. 454 (1981). In Estelle, the United States Supreme Court held that
admitting a court-ordered psychiatrist’s evaluation of the defendant at the penalty phase, based
on statements made about his criminal conduct, violates a defendant’s Fifth Amendment rights if
he is not advised of his rights pursuant to Miranda v. Arizona. Id. Specifically, the Supreme
Court held that “A criminal defendant, who neither initiates a psychiatric evaluation nor attempts
to introduce any psychiatric evidence, may not be compelled to respond to a psychiatrist if his
statements can be used against him at a capital sentencing proceeding.” Id. at 468.
Like claim number two, Johnson’s claim here is governed by the standard set forth in
Strickland which requires a showing that (1) counsel’s representation “fell below and objective
standard of reasonableness” and (2) the “deficient performance prejudiced” him. Strickland, 466
U.S. at 687-88.

16 

In considering Johnson’s claim, the Missouri Supreme Court first noted that Johnson’s
penalty phase counsel did not object to the tape being shown to the jury because she believed it
would show Johnson to be mentally retarded, and, therefore, she could use the tape to help prove
her case. Johnson V, 333 S.W.3d at 469. The Missouri Supreme Court found this to be a
reasonable trial strategy. Id. (citing Kenley, 952 S.W.2d at 266).
The Missouri Supreme Court also determined, as the post conviction review court had
already held, that any objection to the tape on behalf of Johnson’s counsel would have been
without merit because, under existing Missouri Supreme Court precedent, Johnson waived his
claim against self-incrimination by putting his mental condition at issue. Id. at 469. In reaching
this conclusion, the Missouri Supreme Court referenced its existing precedent in State v.
Copeland, 928 S.W.3d 828, 839 (Mo. 1996) (en banc) and State v. Thompson, 985 S.W.2d 779,
786 (Mo. 1999) (en banc), which it held were distinguishable from Estelle v. Smith, 451 U.S. 454
(1981), cited by Johnson, because the defendant in Estelle, did not initiative a psychiatric
evaluate, introduce any psychiatric evidence, or otherwise put his psychiatric condition at issue.
Johnson V, 333 S.W.3d at 469-470.
This Court agrees with the Missouri Supreme Court’s finding that Johnson’s counsel did
not act in an objectively unreasonably manner in not objecting to the admission of all or part of
his videotaped interview with Dr. Heisler and that Johnson was not prejudiced by this decision.
Furthermore, because the Missouri Supreme Court distinguished Johnson’s case from Estelle,
specifically noting how Johnson’s case was similar to existing Missouri Supreme Court
precedent, its decision that any objection would have been without merit is not clearly contrary
to United States Supreme Court precedent. The Missouri Supreme Court’s rejection of Johnson’s

17 

claim is a reasonable and sound application of Strickland and must be upheld under 28 U.S.C. §
2254(d).
IV.

Claim No. 4: Counsel’s Failure to Object to a State Expert’s Mental Retardation
Opinion
In his fourth claim, Johnson alleges that defense counsel during his third penalty phase

was ineffective for failing to object to the cross-examination of defense experts Dr. Smith, Dr.
Keyes, and Dr. Parwatikar on their views of the court-appointed psychologist’s conclusion that
Johnson was not mentally retarded.
Prior to the third penalty phase trial, Johnson’s counsel requested that the trial court
appoint an independent mental health examiner for the purpose of determining whether, as a
matter of Missouri law, Johnson was competent to proceed. (3rd L.F. 238-39; Resp. Exh. 46).
The trial court agreed and ordered the following: “Mental exam ordered [in] accordance with
order signed this date. PA to comply with 552.045.” (3rd L.F. 240; Resp. Exh. 46). The trial
court subsequently retained the services of Dr. Kline of the Mid-Missouri Mental Health Center
to conduct the competency examination. (3rd PCR Exh. 57 at 1-2). Dr. Kline examined Johnson
and determined that he was mentally competent to proceed as ordered by the Court. (3rd PCR
Exh. 57 at 7-8). Dr. Kline also opined that Johnson was not mentally retarded. (3rd PCR L.F.
351; Resp. Exh. 57).
Although Dr. Kline did not testify during Johnson’s third penalty phase and his report
was not admitted as an exhibit, the State cross-examined defense counsel witnesses, Dr.
Parwatikar, Dr. Smith, and Dr. Keyes, without objection about Dr. Kline’s opinion that Johnson
was not mentally retarded. Johnson now argues that his counsel was ineffective for failing to

18 

object to this cross-examination as a violation of § 552.020.14 RSMo 13 and his right to due
process.
Again, the Court evaluates Johnson’s claim by the standard set forth in Strickland which
requires a showing that (1) counsel’s representation “fell below and objective standard of
reasonableness” and (2) the “deficient performance prejudiced” him. Strickland, 466 U.S. at
687-88.
Both the post-conviction review court and the Missouri Supreme Court rejected
Johnson’s argument that questioning regarding Dr. Kline’s report violated § 552.020.14 RSMo.
Specifically, the Missouri Supreme Court found that the questions regarding Dr. Kline’s findings
do not “seek to elicit information about any statements made by Johnson or information received
by Dr. Kline.” Johnson V, 333 S.W. 3d 459, at 470. Rather, the questions were directed toward
Dr. Kline’s opinion as to whether Johnson had mental retardation.

Id.

Additionally, the

Missouri Supreme Court found that “the testimony adduced was not admitted in evidence on the
issue of guilt,” and, therefore, did not violate § 552.020.14. Id.
This Court may not re-examine the Missouri Supreme Court’s interpretation and
application of Missouri law. Schleeper v. Groose, 36 F.3d 735, 737 (8th Cir. 1994) (citing
Estelle v. McGuire, 502 U.S. 62 (1991). Therefore, this Court finds that the Missouri Supreme
Court’s rejection of Johnson’s ineffectiveness claim on the basis of § 552.020.14 is an
objectively reasonable application of Strickland v. Washington, 466 U.S. 668 (1984), and
Johnson’s claim must be denied on this ground.

13

RSMo Section 552.020.14 provides that: “No statement made by the accused in the course of any examination or
treatment pursuant to this section and no information received by any examiner or other person in the course thereof,
whether such examination or treatment was made with or without the consent of the accused or upon his motion or
upon that of others, shall be admitted in evidence against the accused on the issue of guilt in any criminal proceeding
then or thereafter pending in any court, state or federal. A finding by the court that the accused is mentally fit to
proceed shall in no way prejudice the accused in a defense to the crime charged on the ground that at the time
thereof he was afflicted with a mental disease or defect excluding responsibility, nor shall such finding by the court
be introduced in evidence on that issue nor otherwise be brought to the notice of the jury.”

19 

Johnson also argues that allowing testimony regarding Dr. Kline’s examination violated
his constitutional rights. Respondent maintains that this argument is barred because it was not
raised during Johnson’s state court appeals and therefore cannot be considered by this Court. See
Gentry v. Lansdown, 175 F.3d 1082, 1083 (8th Cir. 1999); Flieger v. Delo, 16 F.3d 878, 884-85
(8th Cir. 1994).
“A state prisoner seeking a writ of habeas corpus from a federal court must first fairly
present his claims to the state courts in order to meet the exhaustion requirement of 28 U.S.C. §
2254(b).” Forest, 52 F.3d at 719. This requires that the “same factual grounds and legal theories
asserted in the prisoner’s federal habeas petition have been properly raised in the prisoner’s state
court proceedings.” Krimmel v. Hopkins, 56 F.3d 873, 875-76 (8th Cir. 1995).

More

specifically, the Eighth Circuit has held that “to satisfy the fairly presented requirement, [the
petitioner is] required to refer to a specific federal constitutional right, a particular constitutional
provision, a federal constitutional case, or a state case raising a pertinent federal constitutional
issue in the Missouri state court.” Abdullah v. Groose, 75 F.3d 408, 411-12 (8th Cir. 1996)
(internal quotation omitted).
In his appeal before the Missouri Supreme Court, Johnson argued that:
The motion court clearly erred in overruling Ernest’s postconviction motion
because he received ineffective assistance of counsel in violation of his rights to
due process, freedom from cruel and unusual punishment, and effective assistance
of counsel, U.S. Const. Amends. VI, VIII, and XIV, in that counsel failed to
object to evidence of statements Ernest made to Dr. Kline during a competency to
proceed evaluation, to Kline’s opinion Ernest was not mentally retarded based on
Ernest’s statements and I.Q. scoring, and to closing argument that Ernest was not
mentally retarded based on all these matters because §552.020.14 prohibited
admission and use of these matters and Ernest was prejudiced because hearing the
competency evaluator opinion that Ernest was not mentally retarded with his basis
for that opinion and related argument gave undue weight to it and predisposed the
jury to find Ernest was not mentally retarded.

20 

Because Johnson referenced his constitutional rights to due process, freedom from cruel and
unusual punishment, and effective assistance of counsel, the Court finds that he fairly presented
his federal constitutional claims in state court such that he can raise the issue on appeal. See
Abdullah, 75 F.3d at 411-12.
However, the Missouri Supreme Court previously rejected these arguments. Johnson V,
333 S.W. 3d 459, at 470-71. Because the Missouri Supreme Court’s decision was not contrary to
clearly established federal law, did not involve an unreasonable application of clearly established
federal law, and was not based on an unreasonable determination of facts in light of the evidence
presented, this Court denies relief on these grounds. See Johnson v. Williams, 568 U.S.

(2013)

(holding that federal courts should presume, subject to rebuttal, that a claim was adjudicated on
the merits where a state court “rules against a defendant in an opinion that rejects some of the
defendant’s claims but does not address a federal claim,” and should accordingly apply § 2254’s
deferential standard of review rather than de novo review).14
V.

Claim No. 5: Burden of Proof for Mental Retardation
In claim five, Johnson argues that it was constitutional error for the state trial court to

require him to prove his mental retardation during the third penalty phase by a preponderance of
the evidence rather than requiring the prosecution to prove lack of retardation beyond a
reasonable doubt.
In Atkins v. Virginia, the United States Supreme Court held that it is unconstitutional to
execute a mentally retarded person. 536 U.S. 304 (2002). However, the Court did not provide
procedural guidance for determining mental retardation, instead deferring to states to develop
appropriate means of enforcing this constitutional sentencing restriction. Atkins, 536 U.S. at 317.

14

In Johnson v. Williams, the United States Supreme Court held that there is a rebuttable presumption that a claim
was adjudicated on the merits. 568 U.S.
(2013). The Court finds that Petitioner has failed to rebut this
presumption here.

21 

The Atkins decision was also silent as to which party should bear the burden of proving mental
retardation or by what standard.
In Apprendi v. New Jersey, the Supreme Court provided states with some general
guidance as to the proper adjudication of “sentencing factors.”

530 U.S. 466 (2000).

In

Apprendi, the Court analyzed a New Jersey statute that allowed the range of punishment for
certain criminal offenses to be increased if the trial judge found, by a preponderance of the
evidence, that the offense was a “hate crime.” Apprendi, 530 U.S. at 468-69. In rejecting this
sentencing scheme, the Court held that “other than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to
the jury, and proved beyond a reasonable doubt.”15 Id. at 490. The Court also noted that its
holding should apply regardless of whether a state characterizes fact findings as “elements” or
“sentencing factors” if the “required finding expose[s] the defendant to a greater punishment
than that authorized by the jury’s guilty verdict.” Id. at 492-94.
In Ring v. Arizona, the United States Supreme Court considered a case where the
defendant challenged Arizona’s capital punishment procedures that allowed the trial judge,
sitting alone, to determine the presence of aggravating or mitigating factors required for the
imposition of the death penalty.16 536 U.S. 584 (2002). Applying Apprendi, the Supreme Court
held that when a state makes an increase in a defendant’s authorized punishment contingent on
the finding of a fact, that fact must be found by a jury beyond a reasonable doubt. Ring, 536
U.S. at 602.

15

The Apprendi Court observed that “[a]ny possible distinction between an ‘element’ of a felony offense and a
‘sentencing factor’ was unknown to the practice of criminal indictment, trial by jury, and judgment by court as it
existed during the years surrounding our Nation’s founding.” Apprendi v. New Jersey, 530 U.S. 466, 478 (2000).
16
This practice was previously upheld in Walton v. Arizona, 497 U.S. 639 (1990). The United States Supreme
Court held that Walton could not be reconciled with Apprendi, and thus Walton should be overruled. Ring v.
Arizona, 536 U.S. 584 (2002).

22 

In considering Johnson’s appeal on this ground, the Missouri Supreme Court analyzed
Atkins and Ring, finding that those cases do not require a jury finding of lack of mental
retardation beyond a reasonable doubt. Furthermore, the Missouri Supreme Court found that it is
permissible under United States Supreme Court precedent for Missouri to place the burden on
the defendant to prove mental retardation by a preponderance of the evidence. Johnson IV, 244
S.W.3d at 150-151. Specifically, the Missouri Supreme Court held that a determination that a
defendant is mentally retarded “is not a finding of fact that increases the potential range of
punishment,” but instead is a finding of fact “that removes the defendant from consideration of
the death penalty.” Johnson IV, 244 S.W.3d at 151. Accordingly, the court found that Ring does
not apply to the issue of mental retardation. Id.
The Missouri Supreme Court’s decision in Johnson IV is supported by several other
federal circuit opinions.

Hill v. Humphrey, 662 F.3d 1335 (11th Cir. 2011) (holding that

Georgia’s statutory requirement that a capital defendant bear the burden of proving mental
retardation beyond a reasonable doubt is not contrary to clearly established law); Walker v. True,
399 F.3d 315 (4th Cir. 2005) (rejecting petitioner’s claim that the Supreme Court’s decision in
Ring requires Virginia to prove lack of mental retardation to a jury); In re Johnson, 334 F.3d
403, 405 (5th Cir. 2003) (finding that “the absence of mental retardation is not an element of the
sentence any more than sanity is an element of an offense”). Moreover, as the Missouri Supreme
Court noted, at the time of its decision, no state required the prosecution to prove lack of mental
retardation beyond a reasonable doubt and thirty states placed the burden on the defendant to
show mental retardation. Johnson IV, 244 S.W.3d at 151 n.3.
Because the Missouri Supreme Court’s decision is supported by multiple states and
federal courts of appeal, and because this Court finds that the law in this area is currently

23 

unsettled such that there is no clearly established United States Supreme Court precedent, this
Court finds that the Missouri Supreme Court’s rejection of Johnson’s burden of proof claim is
neither contrary to nor an unreasonable application of clearly established federal law. See
Colvin, 324 F.3d at 588 (“We have held, however, that in the habeas context, the objective
reasonableness of a state court’s application of Supreme Court precedent maybe established if
our sister circuits have similarly applied the precedent.”).

Accordingly, Johnson’s claim is

denied.
VI.

Claim No. 6: Counsel’s Failure to Introduce Dr. Bernard’s Deposition or Direct
Testimony
Johnson’s sixth claim alleges that defense counsel at the third penalty phase was

ineffective for not calling, or at minimum presenting the deposition testimony of, Dr. Bernard
who, prior to Johnson’s first guilt phase trial, found that he was mildly mentally retarded.
The post-conviction court and the Missouri Supreme Court both rejected Johnson’s
argument that defense counsel should have sought to admit Dr. Bernard’s deposition as evidence
for the jury to consider. At the evidentiary hearing before the post-conviction review court,
Johnson’s counsel testified that they provided Dr. Bernard’s deposition to the experts who
testified during the penalty phase, and that while counsel discussed admitting the deposition
itself, they decided not to do so. (3rd PCR L.F. 406-407; Resp. Exh. 57). They could not
remember the basis for this decision. Id. Accordingly, the post-conviction review court found
that Johnson had not overcome the presumption that defense counsel’s decision was not a
reasonable trial strategy. Id. The post-conviction review court also found that the deposition
would not have been admissible for the truth of the matters asserted therein, and that even if it
were admissible for the truth of the matters it asserted, it would have been cumulative of
testimony by defense experts who testified that Johnson was mentally retarded and testified
24 

about Dr. Bernard’s evaluation, findings, and conclusions. Id. at 407.

Accordingly, the post-

conviction review court found that admitting the deposition would have had no effect on the
jury’s determination of Johnson’s sentence. Id.
The Missouri Supreme Court also rejected Johnson’s claim on similar grounds,
concluding that introduction of Dr. Bernard’s deposition testimony did not provide “any new or
mitigating evidence” and would have merely been cumulative of the testimony of Dr. Smith and
Dr. Keyes who both refuted the prosecutor’s argument that Johnson was not mentally retarded.
Johnson V, 333 S.W. 3d at 468. Accordingly, the Missouri Supreme Court found that Johnson
was not prejudiced by counsel’s failure to admit the deposition into evidence. Id. This Court
finds that the Missouri Supreme Court’s denial of Johnson’s claim on this ground is a reasonable
application of Strickland and this Court denies relief on this claim.
Finally, this Court cannot consider Johnson’s present argument that Dr. Bernard herself
should have been called as a witness to present live testimony during the third penalty phase of
trial. This argument goes beyond the claims made by Johnson in state court and is, therefore,
procedurally barred.17 See Flieger, 16 F.3d at 885.
VII.

Claim No. 7: Counsel’s Failure to Investigate and to Call Drs. Parwatikar and
Bernard

Johnson’s seventh claim alleges that guilt phase counsel18 were ineffective for not fully
investigating their experts and presenting testimony in support of a defense that Johnson’s
diminished capacity prevented him from deliberating on the murders.
Prior to Johnson’s guilt phase trial, defense counsel engaged two mental health experts,
Dr. Parwatikar and Dr. Bernard, to evaluate Johnson’s overall mental state and capabilities. Dr.

17

In his Traverse, Johnson concedes that “To the extent that Johnson’s initial claim dealt with the failure to present
live testimony, Johnson agrees that limited issue is barred from consideration.” (Doc. 21, at 36-37).
18
Johnson was represented at trial by Nancy McKerrow and Janice Zembles. State v. Johnson, 968 S.W. 2d 686,
695 (1998).

25 

Parwatikar, a psychiatrist, was hired to evaluate whether Johnson was competent to proceed and
to determine whether there was a basis for an insanity defense. (1st PCR Tr. 8; Resp. Exh. 13).
Dr. Parwatikar concluded that Johnson did not suffer from any mental disease or defect and was
competent to stand trial. Id. at 10-11; see also Johnson I, 968 S.W. 2d at 695. He did not
evaluate guilt-phase issues involving a mental retardation diminished capacity defense. (3rd Sen.
Tr. 1295-96; Resp. Exh. 43). Dr. Parwatikar did not testify at Johnson’s guilt phase trial. (1st
PCR Tr. 16; Resp. Exh. 13). 
Dr. Bernard was hired to perform a psychological evaluation of Johnson to assess
intellectual and cognitive functioning. Id. at 53-55; see also Johnson I, 968 S.W. 2d at 696. Dr.
Bernard reported to Johnson’s counsel after the tests had been administered, but before they had
been scored, and counsel did not contact Dr. Bernard to follow-up about the results of the tests.
(1st PCR Tr. 59; Resp. Exh. 13; see also Johnson I, 968 S.W. 2d at 696). No member of
Johnson’s guilt phase defense team spoke with Dr. Bernard after she performed her initial tests
on Ernest. (1st PCR Tr. 47, 59-60; Resp. Exh. 13). Like Dr. Parwatikar, defense counsel did not
ask Dr. Bernard to testify at trial. Id. at 66-67.
Johnson now argues that his guilt phase counsel was ineffective for failing to consult with
the retained experts and failing to call them to testify at trial. Specifically, Johnson alleges that
counsel was ineffective for (1) not asking Dr. Parwatikar to evaluate guilt-phase issues involving
diminished capacity19 and (2) not consulting with Dr. Bernard after she tested Johnson regarding
a diminished capacity or no deliberation defense.

19

The difference between diminished capacity and “not guilty by reason of mental disease or defect” are two
different concepts. “Although ‘not guilty by reason of mental disease or defect excluding responsibility’ (NGRI) and
‘diminished capacity’ are often confused, they are separate doctrines. This distinction is clearly set forth in the
comments to the Missouri Approved Instructions relating to diminished capacity: ‘The use of evidence of mental
disease or defect negating the existence of a required culpable mental state is not the same as the affirmative defense
of lack of responsibility by reason of mental disease or defect. (See MAI–CR 3d 306.02).’ MAI–CR 3d 308.03, Note
3. ‘Evidence of mental disease or defect negating a culpable mental state is simply evidence that the defendant did

26 

Johnson’s argument is based on testimony provided by Dr. Parwatikar and Dr. Bernard at
Johnson’s first post-conviction review hearing. At this hearing, Dr. Parwatikar testified that
although he did not consider diminished capacity in his initial interview with Johnson, had he
been provided with additional information concerning Johnson’s social history and background,
he would have explored the concept further. Id. at 35. Dr. Bernard also testified at the hearing
regarding her examination of Johnson. Although she never relayed her findings to Johnson’s
lawyers, Dr. Bernard testified at the post-conviction hearing that based upon her psychological
and intelligence tests, Johnson likely had a learning disability, was mildly mentally retarded, and
suffered from cocaine intoxication on the evening of the crime.20 Id. at 59-60; see also Johnson
I, 968 S.W. 2d at 696. Dr. Bernard further testified that after receiving additional information
regarding Johnson’s life history, she would agree with other experts, including Dr. Smith, that
Johnson also had diminished capacity due to mental retardation.21 (1st PCR Tr. 64; Resp. Exh.
13). Finally, Dr. Bernard noted that she was unable to complete all of her testing because of time
restraints at the prison, but that she had expected to be asked to testify at trial and would have
been willing to do so. Id. at 53-58, 66-67.
Johnson’s claim regarding Dr. Parwatikar is without merit. Both the post-conviction
review court, after an evidentiary hearing, and the Missouri Supreme Court found that Johnson’s
claim of ineffective assistance of counsel for failing to call Dr. Parwatikar to testify or further
investigate his opinion regarding Johnson’s diminished capacity was without merit. Johnson I,
968 S.W.2d at 695-697. At the post-conviction review evidentiary hearing, Dr. Parwatikar

not have the culpable mental state that is an essential element of the crime.’” State v. Knight, 355 S.W.3d 556, 559560 (Mo. App. S.D. 2011).
20
In reviewing Johnson’s claim, the Missouri Supreme Court noted that at the motion hearing after Johnson’s first
appeal, Dr. Bernard testified that “Johnson was in the first or second percentile—the borderline mentally retarded
range—meaning that ninety-eight percent of those tested perform at a higher level.” Johnson I, 968 S.W. 2d at 696.
21
Specifically, Dr. Bernard testified that having a social history would have been helpful to her evaluation because it
would “have great bearing in terms of mitigating factors in [Johnson’s] development, and in the understanding of his
slow cognitive performance and neuropsychological impairment.” (1st PCR Tr. 55; Resp. Exh. 13).

27 

testified that based on the information available to him prior to trial, he did not find that Johnson
suffered from diminished capacity. (1st PCR L.F. 35; Resp. Exh. 19). Guilt phase counsel also
testified at the hearing that she made a strategic decision not to call Dr. Parwatikar at the guilt
phase. Id. at 46.
The Missouri Supreme Court reiterated these findings, noting that Dr. Parwatikar found
that Johnson suffered from no mental disease or defect and that counsel decided not to call Dr.
Parwatikar as a witness based on this finding. Johnson I, 968 S.W.2d at 695-697. The Missouri
Supreme Court further noted that Dr. Parwatikar testified that he could not aid in the guilt phase
of Johnson’s defense and that additional background information would not have changed his
testimony but rather only bolstered it. Id. at 696.
Johnson’s claim of ineffective assistance of counsel regarding Dr. Bernard is also without
merit. The Missouri Supreme Court rejected Johnson’s claim on this ground, noting that even if
Johnson’s counsel had followed up with Dr. Bernard about the results of her tests, the evidence
would not have provided a defense to murder in the first degree because voluntary cocaine
intoxication is not a defense. Johnson I, 968 S.W.2d at 696.
Johnson argues that the Missouri Supreme Court’s reasoning on this matter is insufficient
to address his claim because the opinion does not analyze how Dr. Bernard’s testimony may
have been helpful regarding mental retardation and a diminished capacity defense. Yet, this
argument excludes an important component of the Missouri Supreme Court’s ruling which also
held that “the absence of Dr. Bernard’s testimony did not prejudice Johnson in light of the
overwhelming amount of evidence that Johnson did knowingly cause the deaths of the three
victims after deliberation.”

Johnson I, 968 S.W.2d at 696.

This statement addressed the

prejudice prong of Strickland, implying that even if Dr. Bernard had testified regarding mental

28 

retardation and diminished capacity, the evidence that Johnson knowingly caused the deaths of
the three victims after deliberation was so strong that her testimony would not have changed the
jury’s decision.
Accordingly, the Missouri Supreme Court fully addressed Johnson’s argument regarding
diminished capacity, and this determination was not unreasonable in light of the evidence
presented in state court. The Missouri Supreme Court’s finding is, therefore, a reasonable
application of the prejudice prong of Strickland, and Johnson’s claim on this ground is denied.
VIII. Claim No. 8: Counsel’s Failure to Introduce Evidence of A Statutory Mitigating
Factor
In his final claim, Johnson argues that his third penalty phase counsel was ineffective for
failing to present a theory of defense predicated on the idea that Johnson committed the crimes
while acting under the substantial domination of another. During the penalty phase of a capital
prosecution, Missouri law provides for a statutory mitigating circumstance if the defendant acted
under the substantial domination of another person. Mo. Rev. Stat. § 565.032.3(5).

Johnson

now argues that this mitigating factor was not pursued at the third penalty phase trial of his trial
despite substantial evidence that his girlfriend’s son, Rod Grant, played a significant role in the
crime.
Evaluating this claim under the Strickland standard, the Court finds that counsel’s
strategic decision to not present evidence that Johnson acted under the substantial dominion of
another was not deficient performance and did not prejudice him. Strickland, 466 U.S. at 68788. As both the post-review motion court and the Missouri Supreme Court held in rejecting this
claim on review, Johnson’s counsel made a strategic decision at the third penalty phase not to
rehash the guilt phase evidence in support of the theory now advanced by Johnson and instead to
emphasize mental retardation. Johnson V, 333 S.W.3d at 466-467. Furthermore, as the Missouri
29 

Supreme Court noted, the available evidence would not have supported a theory that Johnson
was under the substantial domination of Rod Grant, but could only have supported the theory
that Rod Grant was also at the murder scene, a theory contrary to facts stipulated by the defense
at the penalty phase. Id. Accordingly, the decision of the Missouri Supreme Court in denying
Johnson’s appeal on this claim is reasonable and must be upheld.
IX.

Certificate of Appealability
Under Fed. R. App. P. 22, an appeal may not proceed unless a certificate of appealability

(“COA”) is issued under 28 U.S.C. § 2253. For § 2254 proceedings, the Court “must issue or
deny a certificate of appealability when it enters a final order adverse to the applicant.” Rule 11,
Rules Governing § 2254 Cases in United States District Courts. The COA may issue “only if the
applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2). A petitioner satisfies this standard by showing “that jurists of reason could disagree
with the district court’s resolution of his constitutional claims or that jurists of reason could
conclude the issues presented are adequate to deserve encouragement to proceed further.”
Miller–El v. Cockrell, 537 U.S. 322, 326 (2003), citing Slack v. McDaniel, 529 U.S. 473, 484
(2000).
Here, Petitioner has not made the requisite showing. Therefore, a certificate of
appealability shall not issue.
IT IS SO ORDERED.
Dated: February 20, 2013

/s/ Greg Kays
GREG KAYS,
UNITED STATES DISTRICT JUDGE

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