IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 95-40658
_____________________
JAMES PAUL JOHNSON,
Petitioner-Appellant,
versus
GARY L. JOHNSON, Director,
Texas Department of Criminal
Justice, Institutional Division,
Respondent-Appellee.
_________________________________________________________________
Appeal from the United States District Court for the
Eastern District of Texas
USDC No. 6:95-CV-206
_________________________________________________________________
April 2, 1997
Before JOLLY, JONES, and WIENER, Circuit Judges.
PER CURIAM:*
James Paul Johnson appeals the district court’s denial of his
habeas corpus petition. For the reasons stated below, we affirm
the judgment of the district court.
I
James Paul Johnson was convicted in 1992 for burglary of a
habitation and is serving a life sentence in the custody of the
Texas Department of Criminal Justice, Institutional Division as an
habitual offender. The underlying facts are reported in the
*
Pursuant to Local Rule 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
opinion of the state appellate court affirming the conviction and
sentence on direct appeal:
[T]he home of Jackie and Caroline Barker was burglarized
on June 6, 1991. On the same day, Appellant visited for
about five minutes at the home of the next door neighbor,
U. Z. Bell, inquiring after Barker and his family. A
more distant neighbor saw an automobile like Appellant’s
parked at the Barker mobile home, although he could not
identify Appellant as the car’s driver. U. Z. Bell
identified Appellant’s photograph as the photograph of
the man who had visited him and asked about the Barkers
on the day of the burglary. Appellant was a former in-
law of Jackie Barker and was well known to him. A
warrant was issued for Appellant’s arrest.
Seventeen days later, a highway patrol officer in
Ozona stopped Appellant in an unrelated charge.
Appellant initially gave a false name. Deputy Sheriff
Tim Hooten went to Ozona from Rains county to arrest
Appellant for the Barker burglary. In Ozona, Hooten gave
Appellant a Miranda warning, and then asked Appellant’s
permission to search the car he had been driving when
arrested. Appellant consented to the search, provided he
was allowed to be present. The search disclosed a
camera, a coin purse, and a Crown Royal bag, all items
taken in the burglary of the Barker residence.
Johnson filed a petition seeking a writ of habeas corpus in
the district court. The respondent answered, conceding that
Johnson had exhausted his state remedies. The magistrate judge
recommended that the petition be denied. The district court
adopted the recommendation of the magistrate judge, and entered
judgment dismissing the petition. Johnson gave notice of his
appeal. The district court issued a certificate of probable cause
(a "CPC") for an appeal.
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II
Johnson attacks his conviction on four grounds. First, he
maintains that the indictment against him was defective and that
the defect deprived the trial court of jurisdiction. Second,
Johnson contends that the prosecutor made unfair reference to his
failure to testify at trial in contravention of his Fifth Amendment
rights. Third, Johnson contends that the evidence was insufficient
to convict him. Fourth, Johnson maintains that he received
ineffective assistance of counsel. Before we address the merits of
the case, however, we must determine whether this case is properly
before the court given the amendments to 28 U.S.C. § 2253 effected
by the Antiterrorism and Effective Death Penalty Act.
III
The Antiterrorism and Effective Death Penalty Act (Pub.L. 104-
132, 110 Stat. 1214)(the "Act") was signed into law on April 24,
1996. Title I of the Act addresses habeas corpus reform. Section
102 of the Act amended 28 U.S.C. § 2253 to require a prisoner in
state custody to obtain a "certificate of appealability" (a "COA")
before proceeding with an appeal. 28 U.S.C. § 2253(c)(1)(A). Prior
to the adoption of the Act, a prisoner was required to obtain a CPC
before his appeal could proceed.
A COA may issue only if the applicant has made a "substantial
showing of the denial of a constitutional right." 28 U.S.C. §
2253. This language varies slightly from that used to define the
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standard for granting a CPC.1 Nevertheless, we have determined
that the standard for granting a CPC and a COA are the same.
Drinkard v. Johnson, 97 F.3d 751, 756 (5th Cir. 1996). Therefore,
a court may treat an application for a CPC as an application for a
COA. See Drinkard, 97 F.3d at 756.
Nevertheless, additional concerns are raised when a prisoner
has been granted a CPC prior to the adoption of the Act. We cannot
simply treat a previously granted CPC as a COA. The Act introduced
an additional requirement for issuing a COA: a judge granting a COA
must specifically identify the issues upon which the COA is being
issued. Therefore, a CPC could only be treated as a substitute for
a COA if the granting judge fortuitously identified the issues upon
which the CPC was granted. Because most CPCs do not identify the
issues upon which they were granted, we are forced to either refuse
the prisoner's appeal until a COA is obtained pursuant to the Act,
or refuse to give retrospective application to this narrow portion
of the Act.
In Brown v. Cain, No. 95-30870, 1997 WL 20736 (5th Cir.
Jan. 21, 1997) we resolved this question, holding that an appellant
who has obtained a CPC before the Act was adopted is not required
to also obtain a COA. In making this determination, we applied the
1
In Barefoot v. Estelle, 463 U.S. 880, 103 S.Ct. 3383 (1983),
the Court stated the standard governing the issuance of a CPC: the
applicant must make "a substantial showing of the denial of a
federal right." Id. at 893 (emphasis added).
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analysis established in Landgraf v. USI Film Products, 511 U.S.
244, 114 S.Ct. 1483 (1994).
Under the Landgraf approach, we begin by determining whether
Congress evinced a clear intent to have the statute apply
retrospectively. Section 2253 gives no indication that Congress
intended that it be given retrospective application.2 Accordingly,
we proceed to determine whether the statute is of the type that may
be applied retrospectively.
A statute is not to be applied retrospectively if doing so
would “impair rights a party possessed when he acted, increase a
party’s liability for past conduct, or impose new duties with
respect to transactions already completed.” Landgraf, 511 U.S. at
2
Section 2253, as amended by the Act, states as follows:
(c)(1) Unless a circuit justice or judge issues a certificate of
appealability, an appeal may not be taken to the court of appeals
from --
(A) the final order in a habeas corpus proceeding
in which the detention complained of arises out of
process issued by a State court . . . .
(2) A certificate of appealability may issue under
paragraph (1) only if the applicant has made a
substantial showing of the denial of a constitutional
right.
28 U.S.C. §2253.
This language reveals no Congressional intent that the statute
should apply retrospectively. Likewise, a thorough examination of
Title I of the Act, in its entirety reveals no intent to require
retrospective application. Similarly, the legislative history of
the Act reveals no mention of retrospective application.
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1505. This test is designed to protect individuals from having
their "settled expectations" being swept away, without fair
warning.
In Brown, we noted that "[the appellant] had requested and
received the right to appeal; his 'settled expectation' was that he
had successfully passed all procedural hurdles to this court's
consideration of his clams." Brown, 1997 WL 20736. Brown
concluded that when a prisoner had obtained a CPC before the
adoption of the Act, the Act would not be retrospectively applied,
and the prisoner could proceed with an appeal without also
obtaining a COA. Brown clearly governs this case. Therefore, the
Act will not be retrospectively applied to Johnson, and he may
proceed with his appeal without obtaining a COA. Accordingly, we
proceed to the merits of the case.
IV
A
Defective Indictment
The state indictment initially alleged that the burglary was
committed in Hopkins County. Subsequently, the clerk crossed out
“Hopkins” and wrote in “Rains” without the trial court’s
authorization. Johnson contends that this action rendered the
indictment fundamentally defective, and that this defect deprived
the trial court of jurisdiction. See Morlett v. Lynaugh, 851 F.2d
1521, 1523 (5th Cir. 1988)(In reviewing a habeas petition, this
court is not free to review the sufficiency of a state criminal
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indictment unless the defect robbed the trial court of
jurisdiction.).
If the question of the sufficiency of the indictment is
presented to the highest state court, consideration of the question
is foreclosed in federal habeas corpus proceedings. Id. This issue
was presented to the Texas Court of Criminal Appeals in Johnson’s
state habeas petitions. The state court denied the applications
without written orders. Hence, we decline to review this issue.3
B
Unfair comment on failure to testify
During his closing argument, the state prosecutor stated:
What does he have in the car? He’s got a camera;
he’s got a bracelet; he’s got a coin purse; and, he’s got
that Crown Royal bag.
Where did they come from?
From Jackie Barker’s house.
That was never challenged that these items right
here didn’t come from Jackie Barker’s house.
The defendant’s counsel objected that the argument constituted an
impermissible reference to Johnson’s failure to testify. The trial
court overruled the objection. Johnson contends that the
3
The magistrate judge also took judicial notice that the Texas
trial court had jurisdiction over both Rains and Hopkins Counties
and concluded that the trial court could not have been deprived of
jurisdiction by the typographical error in the indictment.
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prosecutor’s remark deprived him of his due process right to a fair
trial. We are unpersuaded.
This court has held that such a reference is well within the
bounds of the Fifth Amendment. “The Fifth amendment prohibits a
prosecutor from commenting directly or indirectly on a defendant’s
failure to testify. A prosecutor may comment, however, on the
failure of the defense, as opposed to the defendant, to counter or
explain the evidence.” United States v. Borchardt, 809 F.2d 1115,
1119 (5th Cir. 1987) (internal citations omitted). “A statement
violates the Fifth Amendment if the prosecutor intended to comment
on the defendant’s failure to testify or if a jury would naturally
and necessarily interpret the prosecutor’s remarks in that light.”
Montoya v. Collins, 955 F.2d 279, 286-87 (5th Cir.1992)(internal
quotations omitted). The jury would not naturally and necessarily
interpret the prosecutor’s remark as a comment on Johnson’s failure
to testify. The prosecutor’s argument was not improper.
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C
Sufficiency of the evidence
Johnson challenges the sufficiency of the evidence presented
to prove his guilt. The standard for testing the sufficiency of
the evidence in a federal habeas review of a state court conviction
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.”
Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2791-92
(1979). This standard must be applied with reference to the
substantive elements of the criminal offense as defined by state
law. Isham v. Collins, 905 F.2d 67, 69 (5th Cir. 1990). At the
time Johnson committed the offense, Texas Penal Code provision §
30.02 defined the elements of burglary, in pertinent part, as
follows:
(a) A person commits [burglary] if, without the effective
consent of the owner, he:
(1) enters a habitation, or a building (or any
portion of a building) not then open to the
public, with intent to commit a felony or
theft; or . . . ;
(3) enters a building or habitation and
commits or attempts to commit a felony or
theft.
. . . .
(d) An offense under this section is a felony of the
first degree if:
(1) the premises are a habitation . . . .
Tex. Penal Code Ann. § 30.02 (West 1994).
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Where “a state appellate court thoughtfully reviews the issue
of sufficiency of the evidence, that court’s determination is
entitled to ‘great weight.’” Parker v. Procunier, 763 F.2d 665,
666 (5th Cir. 1985)(citation omitted). Review of the state
appellate court’s opinion reveals that the court thoughtfully
considered Johnson’s challenge to the sufficiency of the evidence.
Because Johnson “was in unexplained possession of items taken from
the Barker’s home seventeen days after the burglary” and because
Johnson “was at the Barker home on the day of the burglary [and]
knew the victims,” the state appellate court held that “the
evidence was sufficient for a rational trier of fact to find the
essential elements of the offense beyond a reasonable doubt.”
Johnson argues that the jury could not have reasonably
concluded that he was present at the Barker house and that the
items seized from his car were the items taken from the Barker
house. The evidence is to the contrary.
U. Z. Bell positively identified Johnson as the person who
came to his house and asked about the Barker residence. Jackie and
Caroline Barker both testified that Johnson did not have permission
to come into their house. Jackie Barker further testified that he
gave a list of items missing from his home to the sheriff’s
department. After Johnson’s arrest, Barker went to the sheriff’s
office and identified several of the stolen items. Caroline Barker
testified that she kept jewelry in a Crown Royal bag. She also
identified a rubberized coin purse, a charm bracelet and the
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camera. Deputy Tim Hooten testified that he seized all of the
above items from Johnson’s automobile. A reasonable juror could
convict Johnson on the basis of this testimony.
In the light of the evidence presented and the deference given
to the state court’s assessment of such evidence, we find that the
evidence was sufficient to convict the defendant.
D
Ineffective assistance of counsel
Johnson contends that he received ineffective assistance of
counsel at trial. In order to prove that his counsel was
ineffective, Johnson must show that his attorney’s performance was
deficient and that the deficient performance prejudiced the
defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct.
2052, 2064 (1984). To show deficient performance, Johnson must
overcome the “strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance.” Id.
“[T]he ‘prejudice’ component of the Strickland test . . . focuses
on the question whether counsel’s deficient performance renders the
result of the trial unreliable or the proceeding fundamentally
unfair.” Id. at 689. A court need not address both components if
the petitioner makes an insufficient showing on one. Id. at 697.
“[S]trategic choices made after thorough investigation of law and
facts relevant to plausible options are virtually unchallengeable;
and strategic choices made after less than complete investigation
are reasonable precisely to the extent that reasonable professional
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judgments support the limitations on investigation.” Black v.
Collins, 962 F.2d 394, 401 (5th Cir. 1992)(internal quotations and
citation omitted).
Johnson contends that he told his attorney to contact a
witness, James Everet Sills, who would testify that he was present
when Johnson purchased the thirty-five millimeter camera. The
magistrate judge determined that this claim was without merit
because Johnson had failed to show that the existence of the
witness was brought to the attention of Johnson’s attorney.4 The
magistrate judge noted that Johnson’s contention was undermined by
the Barkers' positive identification of the camera. Because
Johnson failed to establish the facts underlying this ineffective-
assistance claim, he has not shown that his attorney was
professionally unreasonable in failing to investigate this witness.
Johnson also contends that his attorney should have requested
a curative instruction regarding the legality of the search and
seizure. Under state law at the time of the trial, when the
evidence raised an issue regarding the legality of a search and
seizure, the jury should be instructed to disregard any evidence
obtained through the search and seizure if it believes there is a
reasonable doubt whether the search and seizure was legal. Tex.
Code Crim. Proc. art. 38.23(a) (West Supp. 1996). In his brief to
4
The magistrate judge also noted that Johnson had failed to
demonstrate that Sills was available for trial. In his affidavit,
Sills stated that he was a longtime Texas resident and that he
would have been willing to testify at Johnson’s trial.
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this court, Johnson did not explain why he believes that the search
and seizure were illegal. Johnson argued in his brief in the
district court that his testimony at the suppression hearing
demonstrated that the search was nonconsensual. Johnson may not
incorporate this argument in his appellate brief by reference. See
Yohey v. Collins, 985 F. 2d 222, 225 (5th Cir. 1993) (holding that
appellant could not incorporate in his brief his arguments from
other pleadings). In any event, the argument does not establish
that his counsel acted unprofessionally. The defendant’s counsel
litigated the suppression motion. Deputy Hooten testified that
Johnson consented to the search of the vehicle. Although Johnson
denied that he had consented to the search, the trial court
credited Hooten’s testimony--not an unreasonable decision
considering Johnson’s nine prior felony convictions. It was not
professionally unreasonable for Johnson’s lawyer to fail to request
an instruction, and there is no reason to believe that the trial
court would have given the instruction if it had been requested.
Johnson contends that his attorney rendered ineffective
assistance in failing to request an instruction on circumstantial
evidence.5 In Hankins v. State, 646 S.W.2d 191, 197-200 (Tex.
Crim. App. 1983) (opinion on rehearing) the Texas Court of Criminal
Appeals abolished Texas’s circumstantial evidence charge. Under
that charge, juries were instructed to exclude, to a moral
5
Again, Johnson attempts to incorporate his district court
briefing by reference.
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certainty, every other reasonable hypothesis except the defendant’s
guilt. In Geesa v. State, 820 S.W.2d 154, 161 (Tex. Crim. App.
1991) (en banc) the court rejected the reasonable hypothesis
analysis for review of the sufficiency of circumstantial evidence,
directing appellate courts to apply instead the rationality
standard of Jackson. Johnson’s attorney was not professionally
unreasonable in failing to request a circumstantial evidence
charge.
For the reasons stated in this opinion, the judgment of the
district court is
A F F I R M E D.
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