Deck v. Steele, Case No. 4:12 CV 1527 CDP.

• Court: United States District Courts. 8th Circuit. United States District Court (Eastern District of Missouri)
• Citation: 249 F.Supp.3d 991
• Docket Number: Case No. 4:12 CV 1527 CDP.
• Parties: Carman L. DECK, Petitioner, v. Troy STEELE, et al., Respondents.
• Decision Date: 13 April 2017

249 F.Supp.3d 991

Carman L. DECK, Petitioner,

v.Troy STEELE, et al., Respondents.

Case No. 4:12 CV 1527 CDP.

United States District Court, E.D. Missouri, Eastern Division.

Signed April 13, 2017

Elizabeth U. Carlyle, Kansas City, MO, Kevin L. Schriener, Law and Schriener, LLC, St. Louis, MO, for Petitioner.

Katharine Anne Dolin, Stephen D. Hawke, Attorney General of Missouri, Jefferson City, MO, for Respondents.

MEMORANDUM AND ORDER

CATHERINE D. PERRY, UNITED STATES DISTRICT JUDGE

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 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 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 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.

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, 125 S.Ct. 2007, 161 L.Ed.2d 953 (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, 130 S.Ct. 3505, 177 L.Ed.2d 1095 (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 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, 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

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