govinfo:USCOURTS-moed-4_25-cv-00056-1

UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF MISSOURI 
EASTERN DIVISION 
 
 
Memorandum and Order 
 
After a state court convicted Dexter Burks of first-degree murder and armed criminal 
action, he appealed his conviction and moved for post-conviction relief. The state courts denied 
him relief. Now, he brings a petition for writ of habeas corpus, re-raising three claims that he 
presented to the state courts. Because the Missouri courts’ denials of these same claims were not 
contrary to, or an unreasonable interpretation of, clearly established federal law, the Court denies 
Burks’s Petition. 
I. Background 
A. Factual Background 
“In a proceeding instituted by an application for a writ of habeas corpus by a person in 
custody pursuant to the judgment of a State court,” the Court presumes the correctness of “a 
determination of a factual issue made by a State court.” 28 U.S.C. § 2254(e)(1). A petitioner 
bears the “burden of rebutting the presumption of correctness by clear and convincing evidence.” 
Id. The Missouri Court of Appeals summarizes the relevant facts as follows: 
Following a jury trial on July 18, 2019, [Burks] was convicted of one count 
of first -degree murder and one count of armed criminal action. The trial court 
sentenced him to concurrent terms of life imprisonment without the possibility of 
parole on the first count, and thirty- years’ imprisonment on the second count. 
DEXTER D. BURKS, 
 
 Petitioner, 
 
 v. 
 
HEATHER COFER, 
 
 Respondent. 
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[Burks’s] convictions were affirmed by this court on direct appeal. State v. Burks, 
609 S.W.3d 106 (Mo. App. E.D. 2020). The evidence at trial was as follows. 
 
On the night of October 2, 2017, [Burks] and Victim were socializing 
outside of [Burks’s] home with a group of people. [Burks] and Victim were 
neighbors and friends. Victim, [Burks], and [Burks’s] sister began arguing in front 
of [Burks’s] home. [Burks] and Victim pushed one another as the encounter 
escalated. Victim turned away from [Burks] and [Burks’s] sister and began walking 
towards [Victim’s] home. [Burks] fired more than one shot at Victim; the first one 
missed, and the second one fatally struck Victim in the back of the head. No 
weapons were recovered from Victim. Police officers arrived at the scene within 
five or six minutes and took statements from several of the bystanders, including 
Victim’s children and partner, who had seen the events unfold from their 
neighboring house. Police found three cartridge cases in the grass in front of 
[Burks’s] home and later confirmed that they were all fired from the same gun. 
 
At trial, after roughly 105 minutes of deliberation, Juror 93 expressed 
concern to the judicial assistant that Juror 416 had indicated that he wanted to leave 
and that “[h]e would go with the majority of whatever everyone wanted . . . .” 
Thereafter the court questioned Juror 416 on the record in the presence of counsel 
for [Burks] and for the State. Juror 416 confirmed that he was indifferent as to the 
verdict and that, despite hearing all the evidence and argument, that he intended to 
vote in accordance with the majority to “go with the party agreement.” The court 
gave both parties an opportunity to ask questions, although they did not have any. 
The court then replaced Juror 416 with an alternate juror and instructed the jury to 
begin deliberations anew. [Burks’s] counsel did not object, and the jury deliberated 
for another three hours before returning a verdict. 
Doc. 11-12 at 3–4 (The Court cites to page numbers as assigned by CM/ECF.). 
B. Procedural History 
After his conviction in state court, doc. 11-2; State v. Dexter Deshun Burks, 1722-
CR04669-01 (Mo. Cir. Ct. 2018), Burks appealed his conviction, doc. 11-4. On appeal, Burks 
argued that the trial court should have both granted his motion for acquittal based on the self-
defense evidence he presented at trial and declared a mistrial because the court replaced a juror 
after jury deliberations began. See id. at 22–23. 
After the Missouri Court of Appeals denied him relief on these grounds, see State v. 
Burks, 609 S.W.3d 106 (Mo. Ct. App. 2020), Burks filed a post-conviction motion under 
Missouri Rule of Criminal Procedure 29.15, see doc. 11-7; Dexter Deshun Burks v. State of 
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Missouri, 1922-CC12096 (Mo. Cir. Ct. 2019). After the motion court denied his motion, see 
doc. 11-9, Burks appealed that denial, doc. 11-10. After the Missouri Court of Appeals denied 
him relief on this motion as well, see doc. 11-12, Burks brought a petition for writ of habeas 
corpus under section 2254 in this Court, doc. 1. After the Court noted that his Petition was 
unsigned and asked Burks to sign it, doc. 4, Burks did so, doc. 5. 
II. Standard 
A state prisoner who petitions for relief under section 2254 must prove that he is “in 
custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. 
§ 2254(a). Before seeking relief in federal court, the petitioner must “exhaust state court 
remedies”; in other words, he must “give the state courts ‘one full opportunity to resolve any 
constitutional issue[s] by invoking one complete round of the state’s established appellate review 
process.’” Randolph v. Kemna, 276 F.3d 401, 403 (8th Cir. 2002) (quoting O’Sullivan v. 
Boerckel, 526 U.S. 838, 845 (1999)); see also 28 U.S.C. § 2254(b)(1) (“An application for a writ 
of habeas corpus . . . shall not be granted unless it appears that the applicant has exhausted the 
remedies available in the courts of the State.”). 
But Missouri law does not require that a petitioner appeal to the Supreme Court of 
Missouri to exhaust his state remedies. See Mo. Sup. Ct. R. 83.04 (“Transfer by this Court is an 
extraordinary remedy that is not part of the standard review process for purposes of federal 
habeas corpus review.”); see also Randolph, 276 F.3d at 404 (“Rule 83.04 constitutes an 
unequivocal statement . . . that Missouri does not consider a petitioner who bypasses its supreme 
court in favor of federal habeas review to have denied the State its rightful ‘opportunity to 
resolve federal constitutional claims.’” (quoting O’Sullivan, 526 U.S. at 845)). 
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The petitioner must also first bring his habeas claims in state court; under Missouri law, a 
petitioner “default[s] . . . his claims by failing to present them to the Missouri courts at any stage 
of his direct appeal or his post-conviction proceedings.” Sweet v. Delo, 125 F.3d 1144, 1149 
(8th Cir. 1997); see also State ex rel. Zinna v. Steele, 301 S.W.3d 510, 516 (Mo. 2010) (“[I]f a 
petitioner fails to raise a claim for relief that could have been asserted in an appeal or in a post-
conviction motion, the petitioner normally is barred from raising the claim in a subsequent 
petition for writ of habeas corpus.”), overruled on other grounds by Branson v. Shewmaker, 710 
S.W.3d 531 (Mo. 2025). 
Additionally, in Missouri, “a claim must be presented at each step of the judicial process 
in order to avoid default.” Arnold v. Dormire, 675 F.3d 1082, 1087 (8th Cir. 2012) (citation 
modified). Where a petitioner fails to appeal an ineffective-assistance-of-trial-counsel claim he 
raised in his post-conviction motion, that claim is deemed defaulted. See id. And “[a] state 
prisoner who defaults on his federal claims in state court because of a state procedural rule is 
barred from federal habeas unless the prisoner can show cause and prejudice.” Id. (citing 
Coleman v. Thompson, 501 U.S. 722, 750 (1991)). 
After all of this, to obtain relief under section 2254 in federal court, a petitioner must 
establish that the state-court proceedings: 
(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). To warrant relief, a state court’s decision must be “more than incorrect or 
erroneous”; it “must be objectively unreasonable.” Lockyer v. Andrade, 538 U.S. 63, 75 (2003). 
A petitioner must also show that equitable considerations favor relief. “[E]ven a petitioner who 
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prevails under [the Antiterrorism and Effective Death Penalty Act] must still today persuade a 
federal habeas court that ‘law and justice require’ relief.” Brown v. Davenport, 596 U.S. 118, 
134 (2022) (citations omitted); see also 28 U.S.C. § 2243 (“A court, justice, or judge entertaining 
an application for a writ of habeas corpus . . . shall summarily hear and determine the facts, and 
dispose of the matter as law and justice require.”). Historically, “the States’ ‘powerful and 
legitimate interest in punishing the guilty’” stands as the most important of these equitable 
considerations. Brown, 596 U.S. at 132 (quoting Calderon v. Thompson, 523 U.S. 538, 556 
(1998)). 
III. Discussion 
 Burks raises three grounds for relief under section 2254. First, he argues that the “trial 
court erred in overruling [his] motion for judgment of acquittal,” “because the state failed to 
disprove [Burks] acted in self defense [sic] and the force he used . . . was justified.” Doc. 5 at 5. 
Second, Burks claims that the “trial court plainly erred in failing to [s]ua [s]ponte declare a 
mistrial after [the] jury retired to consider its verdict and the court learned that” one juror “could 
not perform his duties . . . in accordance with the court’s instruction and his oath.” Id. at 8. 
Finally, Burks claims that “he was denied effective assistance of counsel . . . when trial counsel 
failed to subpeona [sic] and call . . . known alibi witnesses.” Id. at 10. 
A. The trial court’s ruling on Burks’s motion for judgment of acquittal 
Burks first argues that the trial court should have granted his judgment of acquittal at the 
close of evidence. See doc. 5 at 5. Burks claims that “there was sufficient evidence presented at 
trial that [he] reasonably believe[d] the force he used against [the victim] was necessary to 
defend himself from . . . imminent use of unlawful force.” Id. Burks therefore argues that the 
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“trial court’s ruling deprived [him] of his rights to due process of law and a fair and impartial 
trial as guaranteed by” both the United States and Missouri constitutions. Id. 
“In federal habeas review, the factual findings of state courts . . . ‘are presumed to be 
correct, and may be set aside . . . only if they are not fairly supported by the record.’” Nicklasson 
v. Roper, 491 F.3d 830, 841 (8th Cir. 2007) (quoting Purkett v. Elem, 514 U.S. 765, 769 (1995)). 
For insufficient-evidence claims, “the relevant question is whether, after viewing the evidence in 
the light most favorable to the prosecution, any rational trier of fact could have found the 
essential elements of the crime beyond a reasonable doubt.” Bookwalter v. Vandergriff, 73 F.4th 
622, 625 (8th Cir. 2023) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in 
original). 
Under this analysis, Burks must overcome “two layers of judicial deference.” Id. First, 
the jury determines “what conclusions to draw from the evidence, and on direct appeal, a 
reviewing court will not set aside a jury’s verdict unless no rational trier of fact could have 
agreed with the jury.” Id. Second, on habeas review, this Court “will not overturn a state-court 
decision rejecting an evidence-sufficiency challenge unless that decision was objectively 
unreasonable.” Id. 
Burks first made this insufficient-evidence argument on his direct appeal of his 
conviction to the Missouri Court of Appeals. See doc. 11-4 at 22. The Missouri Court of 
Appeals rejected this argument and affirmed Burks’s conviction. See State v. Burks, 609 S.W.3d 
106, 107 (Mo. Ct. App. 2020); doc. 11-6 at 3–8. The court noted that “[i]t is a rare case where a 
defendant is entitled to an acquittal on self-defense as a matter of law.” Doc. 11-6 at 4 (quoting 
State v. Watson, 839 S.W.2d 611, 615 (Mo. Ct. App. 1992)). The court then mentioned that 
when a criminal defendant tests the sufficiency of evidence, the appellate court’s “review is 
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limited to determining whether the State introduced sufficient evidence from which a reasonable 
juror could have found each element of the offense to have been established beyond a reasonable 
doubt.” Doc. 11-6 at 4 (first citing State v. Naylor, 510 S.W.3d 855, 859 (Mo. banc 2017); and 
then citing State v. Demery, 568 S.W.3d 552, 555 (Mo. Ct. App. 2019)). When examining the 
evidence, the appellate court must “accept as true all evidence favorable to the State” and 
“disregard all evidence and inferences contrary to the verdict.” Doc. 11-6 at 4. 
Here, the appellate court found that there was substantial evidence to prove that Burks 
was not acting in self-defense. Doc. 11-6 at 6. For example, Burks “shoved or pushed [the] 
victim in the chest, causing [the] victim to falter.” Id. Additionally, multiple witnesses testified 
that the victim did not have a gun. Id. Evidence at trial also established that the victim was 
walking away from Burks when Burks shot him. Id. at 7. The jury could have also found that 
Burks had a “deliberation to kill, . . . disproving that he acted in lawful self-defense.” Id. Burks 
“fled from the scene after the shooting, disassembled his gun, and threw the parts down different 
sewers.” Id. He “did not call for help” and “lied to the police about not being at the scene.” Id. 
at 8. 
Because of this evidence and more, the Missouri Court of Appeals held that “the State 
presented sufficient evidence from which the jury could find [Burks] did not act in self-defense 
beyond a reasonable doubt.” Id. As a result, “[t]he trial court . . . did not err in denying 
[Burks’s] motion.” Id. Here, based on the evidence in the record, the Court finds that the 
Missouri courts’ findings were not “objectively unreasonable.” Lockyer, 538 U.S. at 75. The 
trial court’s decision to deny Burks’s motion for acquittal, and the Missouri Court of Appeals’ 
affirmation of that decision, were not premised on an “unreasonable determination of the facts.” 
28 U.S.C. § 2254(d). Accordingly, the Court denies Burks relief on his first ground. 
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B. The trial court’s failure to declare a mistrial sua sponte 
In his second ground, Burks claims that the “trial court plainly erred in failing to [s]ua 
[s]ponte declare a mistrial after [the] jury retired to consider its verdict and the court learned 
that” one juror “could not perform his duties . . . in accordance with the court’s instruction and 
his oath.” Doc. 5 at 8. The trial court replaced that juror with an alternate instead. Id. Burks 
argues that these actions violated his rights under the Missouri and United States constitutions. 
Id. However, the Court finds that Burks procedurally defaulted this claim under Missouri law. 
Burks first raised this argument on direct appeal. See doc. 11-4 at 23. Burks admitted 
that his counsel did not object to the court’s juror replacement at trial, which failed to preserve 
his objection for appeal. Id. at 34–35. As a result, Burks asked the Missouri Court of Appeals to 
conduct a plain-error review of the trial court’s decision. See id.; see also State v. Nickels, 598 
S.W.3d 626, 633 (Mo. Ct. App. 2020) (noting that, under Missouri law, to preserve a claim for 
appellate review, “an appellant must first object at the earliest opportunity”). 
The Missouri Court of Appeals affirmed Burks’s conviction. See State v. Burks, 609 
S.W.3d 106, 107 (Mo. Ct. App. 2020). The court declined to conduct a plain-error review “to 
impose a sua sponte duty on the trial court to correct a defendant’s invited errors.” Doc. 11-6 at 
10 (citing Nickels, 598 S.W.3d at 634). The court concluded that Burks “affirmatively 
acquiesced in [the] trial court’s actions, and thus waived plain-error review.” Id. But even if the 
court did conduct plain-error review, Burks would have still failed, the court says, because “he 
does not facially establish substantial grounds for believing that he suffered a manifest injustice 
or miscarriage of justice from the juror replacement.” Id. at 11. 
“A state prisoner who defaults on his federal claims in state court because of a state 
procedural rule is barred from federal habeas unless the prisoner can show cause and prejudice.” 
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Arnold, 675 F.3d at 1087 (citing Coleman, 501 U.S. at 750). If state law requires a petitioner to 
state his objections during trial, his failure to do so constitutes an adequate and independent state 
ground for the state court’s decision, precluding this Court’s review of that decision. See 
Osborne v. Ohio, 495 U.S. 103, 123 (1990). Additionally, a state court’s reviewing a defaulted 
claim for plain error does not excuse a petitioner’s default; a federal court is still barred from 
examining that claim for habeas relief. See Clark v. Bertsch, 780 F.3d 873, 876–77 (8th Cir. 
2015). 
Burks admits, doc. 11-4 at 34–35, and the Missouri Court of Appeals found, doc. 11-6 at 
8–12, that Burks did not timely raise his objection under Missouri law to the trial court’s juror 
replacement. As a result, the state court’s decision denying Burks relief on this ground is 
supported by an adequate and independent state ground, precluding this Court’s review of that 
decision. See Osborne, 495 U.S. at 123. And Burks does not argue that he had cause for this 
default and suffered prejudice from it. See generally doc. 5; Arnold, 675 F.3d at 1087. 
Therefore, this Court denies Burks relief on ground two. 
C. Ineffective assistance of trial counsel for failure to subpoena witnesses 
Finally, Burks claims that “he was denied effective assistance of counsel . . . when trial 
counsel failed to subpeona [sic] and call . . . known alibi witnesses.” Doc. 5 at 10. Just like 
Burks’s ground two, the Court finds that Burks procedurally defaulted this claim as well. Burks 
raised this claim in his initial state postconviction motion. Doc. 11-7 at 18–23. The motion 
court analyzed and denied Burks relief on this claim. Doc. 11-9 at 8–9. However, he did not 
raise this claim on his appeal of the motion court’s decision. See generally doc. 11-10. 
Under Missouri law, “a claim must be presented at ‘each step of the judicial process’ in 
order to avoid default.” Arnold, 675 F.3d at 1087 (quoting Jolly v. Gammon, 28 F.3d 51, 53 (8th 
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Cir.1994)). “Failure to raise a claim on appeal from the denial of a post-conviction motion erects 
a procedural bar to federal habeas review.” Jolly, 28 F.3d at 53 (quoting Gilmore v. Armontrout, 
861 F.2d 1061, 1065 (8th Cir. 1988)). 
For ineffective-assistance-of-trial-counsel claims, the Supreme Court has created an 
exception for procedural default that occurs during an initial state court’s collateral review “if, in 
the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was 
ineffective.” Arnold, 675 F.3d at 1087 (quoting Martinez v. Ryan 566 U.S. 1, 17 (2012). 
“Martinez offers no support, however, for the contention that the failure to preserve claims on 
appeal from a postconviction proceeding can constitute cause.” Id. So a petitioner cannot 
demonstrate cause for procedural default where he raises “ineffective[-]assistance claims” that 
“were litigated in his initial-review collateral proceeding, but not preserved on appeal.” Id. 
Here, Burks raised this ineffective-assistance-of-trial-counsel claim in his initial state 
postconviction motion. See doc. 11-7 at 18–23. The motion court analyzed and denied Burks 
relief on this claim. Doc. 11-9 at 8–9. And Burks did not raise this claim on his appeal of the 
motion court’s decision. See generally doc. 11-10. Burks does not argue that he has other 
grounds for cause and prejudice for his failure to appeal this claim. See generally doc. 5; Arnold, 
675 F.3d at 1087. Accordingly, the Court denies Burks relief on ground three as well. 
IV. Certificate of appealability 
The Court finds that Burks has not made a substantial showing of the denial of a 
constitutional right, as is required before this Court can issue a certificate of appealability. 28 
U.S.C. § 2253(c); see also Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997) (explaining that a 
“substantial showing” is a showing that the “issues are debatable among reasonable jurists, a 
court could resolve the issues differently, or the issues deserve further proceedings”). Therefore, 
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the Court does not issue a certificate of appealability as to any claims raised in Burks’s section 
2254 petition. 
V. Conclusion 
 The Court denies Burks’s [5] Petition Under 28 U.S.C. § 2254 for a Writ of Habeas 
Corpus by a Person in State Custody, and dismisses the petition with prejudice. The Court does 
not issue a certificate of appealability. A separate Order of Dismissal accompanies this 
Memorandum and Order. 
So ordered this 8th day of June 2026. 
 
 
 STEPHEN R. CLARK 
 CHIEF UNITED STATES DISTRICT JUDGE 
 
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