UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 99-30774
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WILLIAM S. JOHNSON,
Petitioner-Appellee,
versus
BURL CAIN, WARDEN,
LOUISIANA STATE PENITENTIARY,
Respondent-Appellant.
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Appeal from the United States District Court
for the Eastern District of Louisiana
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June 19, 2000
Before JONES and BENAVIDES, Circuit Judges, and WALTER,* District
Judge.
BENAVIDES, Circuit Judge:
William S. Johnson, a Louisiana state prisoner, sought a writ
of habeas corpus in the district court, pursuant to 28 U.S.C. §
2254, on, inter alia, the grounds that his trial was tainted by
improper jury instructions, in violation of Cage v. Louisiana, 498
*
District judge of the Western District of Louisiana,
sitting by designation.
U.S. 39 (1990), and that his confession, admitted at trial, was
obtained through the use of coercion. Finding merit on these two
grounds, the district court granted Johnson relief. The respondent
appeals from this decision. Finding the admission of Johnson’s
confession harmless, we reverse the district court on that issue.
Further, finding that the district court incorrectly determined
that the Cage issue was not procedurally barred, we remand with
instructions to allow the petitioner an opportunity to show cause
and prejudice with respect to the procedural bar.
I. FACTUAL AND PROCEDURAL HISTORY
Johnson was convicted by a state jury in Louisiana of first
degree murder in the death of his mother. He is now serving a life
sentence on this conviction. His sentence and conviction were
affirmed on direct appeal in the Louisiana Supreme Court. See
State v. Johnson, 438 So.2d 1091 (La. 1983).
The following facts of the murder are as determined and
recounted by the Louisiana Supreme Court:
During the early evening hours of January 16, 1978,
a young man rang the doorbell at the Washington Avenue
residence of Dr. and Mrs. Thomas Crumpler in Orleans
Parish. When Dr. Crumpler opened the door he found Kevin
Seward, a man unknown to him at the time, standing on the
steps. Seward pulled out a gun, forced his way inside
the house, and shot both Dr. and Mrs. Crumpler, seriously
injuring Dr. Crumpler and killing Mrs. Crumpler.
Defendant William Johnson, Mrs. Crumpler’s son, had
long nursed an intense and abiding hatred of his mother.
When told of her death, Johnson joyously announced: “The
bitch is dead. This is the happiest day of my life.
I’ll dance a jig on her grave.” Police investigation
thus quickly focused on Johnson and his lover, Kevin
Seward. Both Johnson and Seward were arrested by police
2
on January 18, 1978. During the course of interrogation,
Johnson confessed to the murder of his mother - a
confession admittedly false in its principal details. In
an effort to conceal Seward’s identity as the actual
assailant, Johnson told the police that a person named
Brent Engles had helped him commit the murder. The
authorities interviewed Engles, discounted him as a
suspect and then returned to question Seward, who
subsequently confessed to his role in the murder. Dr.
Crumpler identified Seward as his assailant in a
photographic line-up conducted at the hospital.
According to the State’s theory of the case, Johnson
recruited Seward to kill his mother out of an unnatural
hatred of her and fear that he might lose his
inheritance. The defendant argued in rebuttal that Kevin
Seward is a disturbed and violent individual who acted
entirely on his own in killing Mrs. Crumpler. The jury
rejected defendant’s argument and convicted him of first
degree murder.
Both Johnson and Seward filed pre-trial motions to suppress
their confessions, which were denied by the trial court, on the
grounds that the statements were not voluntarily given. Johnson
unsuccessfully sought review of this ruling, pre-trial, in the
Louisiana Supreme Court. See State v. Johnson, 363 So.2d 684 (La.
1978). Johnson again unsuccessfully raised this issue on direct
appeal. Johnson then filed at least fifteen applications for
supervisory writs between 1978 and 1995 to the Louisiana Supreme
Court, none of which resulted in the granting of relief.
Johnson’s first federal habeas petition was filed in 1985. In
it, Johnson asserted that his confession had been coerced, the
transcript of his trial was inaccurate, and hearsay evidence had
been wrongly admitted at his trial. On July 16, 1987, the district
court, at Johnson’s request, stayed the federal proceeding
indefinitely, instructing the clerk of the court “to close this
3
matter administratively, until such time, if any, that petitioner
should wish to proceed with the case.” Apparently, Johnson sought
and received this stay so that he would have an opportunity to
present the issue of his coerced confessions anew to the state
courts. Johnson’s hope for relief from the state courts was
renewed in light of the Louisiana Supreme Court’s reversal of
Seward’s conviction on direct appeal,2 on the Court’s determination
that his confession had been, in fact, coerced. See State v.
Seward, 509 So.2d 413 (La. 1987).
The instant federal habeas petition was filed on June 13,
1997, in which Johnson asserted the same grounds as in his 1985
petition in addition to a newly-asserted claim concerning his jury
instructions. Johnson stated that his jury-instruction claim had
been denied by the state trial court and by the Louisiana Supreme
Court, sometime in the 1990s, based on a state procedural rule
which provides for a three-year prescription period in which an
attack on a final conviction is allowed. He further alleged that
he had sought state post-conviction relief on his coerced
confession in light of the reversal of Seward’s conviction but that
claim was also denied under the above noted procedural rule.
Upon the magistrate judge’s recommendation, the district court
dismissed this petition for failure to exhaust on November 10,
2
Direct review of Seward’s conviction took close to nine
years, “[f]or unexplained reasons.” State v. Seward, 509 So.2d
413, 414 (La. 1987).
4
1997. On November 18, 1997, Johnson filed a motion to delete his
unexhausted claims and/or a motion for reconsideration and review,
and requested that he be allowed to proceed with his exhausted
claims. On December 4, 1997, the district court vacated the
dismissal of the petition for failure to exhaust, deleted the
unexhausted claims, and referred the matter to the magistrate judge
for further proceedings.
Reaching the merits of Johnson’s petition, the district court
determined that the reasonable-doubt charge given in Johnson’s case
was the same charge given in Humphrey v. Cain, 120 F.3d 526 (5th
Cir. 1997), adopted in pertinent part, 138 F.3d 552, 553 (5th Cir.
1998) (en banc), which had been deemed unconstitutional by this
Court under the Cage doctrine. The district court concluded that,
as a result of this erroneous jury charge, Johnson was denied due
process and a constitutional jury trial and was entitled to habeas
relief on this claim.
The district court also determined that Johnson was entitled
to habeas relief on the grounds that his confession was coerced,
and, therefore, erroneously admitted at trial. Applying pre-
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) law,
the district court determined, based on the state supreme court’s
findings in co-conspirator Seward’s case, that Johnson had not
freely confessed.
Specifically, the district court concluded that Johnson
overheard Seward being beaten by the police and confessed in order
5
to avoid being beaten himself or to avoid further harm being
imposed on Seward, known to be Johnson’s lover. In reaching this
conclusion, the district court relied in part on the fact that the
state supreme court determined that the admission of Seward’s
confession at Seward’s trial was not harmless error and that his
conviction required reversal on this ground. See State v. Seward,
509 So.2d 413 (La. 1987). The district court found that the state
court’s findings in Johnson’s case to the contrary were not
supported by the record, in light of these subsequent developments
and the evidence in the record, and further found that the
admission of this coerced confession was not harmless error.
The district court ordered that Johnson was to receive a new
trial or be released within ninety days. The respondent filed a
timely notice of appeal.
II. ANALYSIS
As the district court granted habeas relief on two separate
grounds, each ground will be discussed separately, in turn.
1. Did the district court properly reach the merits of Johnson’s
Cage claim and, accordingly, properly grant relief?
As noted above, Johnson’s Cage claim was not initially
presented in his 1985 federal habeas petition. Rather, it first
appeared in his subsequent, 1997 petition. Nothing in the state
court record, however, indicates when Johnson first raised the Cage
issue in state court. In fact, as the district court noted, the
state court docket sheet indicates no activity between 1988 and
6
1997. Yet, it is not disputed that Johnson filed several petitions
for relief in the state court during this period. The state court
docket sheet does not reflect the full procedural history of this
case and appears to be missing several filings and rulings over the
course of several years. In an effort to reconstruct the
procedural and substantive history of Johnson’s case, the district
court enlisted the willing help of assistant district attorneys,
apparently with only mild success.
Thus, we are left with an incomplete record on which to assess
whether and, more importantly, when Johnson raised his Cage claim
in the state courts. This time-frame is critical to the proper
resolution of this matter, as Louisiana applies a three-year
prescriptive period to all collateral attacks on criminal
convictions, see La. Code Crim. P. Ann. art. 930.8 (“[n]o
application for post conviction relief, . . . shall be considered
if it is filed more than three years after the judgment of
conviction and sentence has become final”), although petitions
filed before October 1, 1991, are excepted from this limitations
period, regardless of the date of conviction.
The state court record clearly indicates, and the parties do
not appear to dispute, that Johnson filed an application for post-
conviction relief in June, 1992, in which Johnson raised the Cage
issue. It was dismissed as procedurally barred by the Louisiana
Supreme Court in September, 1995. The district court, however,
determined additionally that Johnson filed an application with his
7
Cage claim in September, 1991 - four days prior to the date the
above-described procedural bar came into effect. The district
court, in so determining, noted that it was in possession of a
receipt, dated September 26, 1991, showing that Johnson had sent
some otherwise unidentified “legal” documents to the Louisiana
Supreme Court.3 The district court determined that “[i]t appears
very likely it was in fact a receipt for his PCR [post-conviction
relief] application, which included the Cage issue.” The district
court went on to determine that an order dated May 5, 1992, in
which the Louisiana state district court dismissed a petition for
post-conviction relief as time-barred under article 930.8, in fact
referred back to the September 26 filing.4
Thus, the district court reached the merits of Johnson’s Cage
claim, determining, according to a time-line of its own making,
that the state court improperly applied the statutory prescriptive
period. This determination rests on the district court’s finding
that Johnson filed his claim in advance of October 1, 1991.
In habeas appeals, we review the district court’s rulings of
law de novo. “Thus, we review de novo this appeal which challenges
. . . the district court’s determination that [Johnson’s] claim was
3
The district court does not discuss the fact that this
receipt is for papers filed with the Louisiana Supreme Court,
rendering this filing - even if it was otherwise a petition for
post-conviction relief - improper as filed, in the wrong court.
4
Johnson maintains that he did, in fact, file a petition on
September 26, 1991, but he asserts that the state courts never
ruled on that petition.
8
not barred procedurally. . . .” Boyd v. Scott, 45 F.3d 876, 879
(5th Cir. 1994).
Our de novo review of the district court’s ruling convinces us
that the district court erred. The record simply does not support
the district court’s findings. In fact, the record fairly demands
that we recognize the state court’s application of its procedural
rules, such that we do not reach the merits of an issue that the
state courts determined was not properly presented.
Ordinarily, in order to determine whether the AEDPA governs
the instant petition, we would be required to determine whether to
treat Johnson’s instant federal habeas petition as an amendment to
the earlier-filed and subsequently-stayed petition of 1985, or,
alternatively, as a new petition first filed in 1997. In this
case, however, it does not matter. The record indicates that the
state courts were presented with the Cage issue in 1992, and later
rejected it as time-barred in 1995. Under either regime, pre-AEDPA
or AEDPA, if the state court does not reach the merits of a
petitioner’s claim, we review the issues presented de novo.
However, we only reach the merits of the petition if petitioner
demonstrates cause for the default and actual prejudice resulting
from the default. See Engle v. Issac, 456 F.2d 107, 129 (1982).
This rule stems from the long-standing principle that federal
courts do not sit to review questions of state law. See Id. at
119; Dickerson v. Guste, 932 F.2d 1142, 1145 (5th Cir. 1991) (“We
9
will not review a state court’s interpretation of its own law in a
federal habeas corpus proceeding.”)
Thus, as the record offers nothing to indicate otherwise, we
find that the Louisiana Supreme Court applied its own procedural
rule to dismiss Johnson’s Cage claim in 1995. Unlike the district
court, we are not convinced by the presence of a receipt and
petitioner’s assurances that he filed his claim in advance of the
October 1, 1991, deadline. In fact, as stated above, we are bound
to credit the later filing and ruling - which is in the record - in
which the state court applied its own procedural bar to dismiss the
petition. As Johnson offers nothing to rebut the presumption that
the rule is adequate and independent - i.e., it is regularly
followed - and, as the district court made no finding to this
effect, we recognize Louisiana’s application of its own procedural
rule. See Hughes v. Johnson, 191 F.3d 607, 614 (5th Cir. 1999),
cert. denied, 120 S.Ct. 1003 (2000) (The doctrine of procedural
default in a § 2254 action “presumes that a state procedural ground
is adequate and independent - the rule must, for instance, be
regularly followed - and ordinarily, the burden is on the habeas
petitioner to demonstrate otherwise.”)
Our determination that the Louisiana state courts properly
applied their own procedural rule, however, does not end our
treatment of this issue. It is also a longstanding rule that a
state may forfeit the right to assert a procedural bar defense by
not raising it in the district court. See Fisher v. Texas, 169
10
F.3d 295, 301 (5th Cir. 1999). As the respondent failed to raise
the procedural bar with respect to the Cage claim in his initial or
supplemental response filed with the district court, we must
consider whether this defense has been forfeited.
“[A] federal district court may, in the exercise of its
discretion, raise a habeas petitioner’s procedural default sua
sponte and then apply that default as a bar to further litigation
of petitioner’s claims.” Magouirk v. Phillips, 144 F.3d 348, 358
(5th Cir. 1998). In this case, the district court discussed the
state court’s application of the procedural bar in 1995, but
declined to credit this state court determination, finding instead,
as discussed above, that the receipt dated September 26, 1991,
demonstrated an earlier and appropriately filed petition. As we
noted, this finding is not supported by the record, given our
required deference to state court application of state law. While
there is no established rule in this Circuit concerning whether a
district court is authorized to raise a procedural bar sua sponte
and reject it without pleadings from the respondent, we find, on
the unique facts of this case, that the district court erred in not
doing so here.
Thus, we reverse the district court’s grant of habeas relief
on the Cage issue, and we remand the issue back to the district
court to provide Johnson with an opportunity to demonstrate cause
and prejudice, or actual innocence, as required by applicable law,
as well as to allow the respondent an opportunity to respond to any
11
issues raised by Johnson’s efforts. We emphasize that this remand
is limited only to the issue of cause and prejudice as we find the
Cage issue is otherwise procedurally barred.
We now consider the second ground for relief.
2. Was the admission of Johnson’s allegedly coerced confession
harmful, thus requiring a grant of relief?
The district court additionally granted relief on Johnson’s
claim that his confession was coerced and admission of it at trial
constitutes reversible error. As with the previous claim, it is
unclear whether this issue, as raised in the 1997 petition, should
be reviewed under pre-AEDPA law, because it was initially raised in
the earlier 1985 petition, or whether the entire 1997 petition,
including this issue, warrants review under the AEDPA. We decline,
however, to settle this issue and instead assume that the issue
deserves review under the more generous pre-AEDPA scheme.
We further assume, for purposes of this appeal only, that
Johnson’s confession was coerced in violation of the United States
Constitution. Thus, the only issue we decide is whether the
admission of Johnson’s confession at trial warrants habeas relief
under the harmless-error doctrine.
It is well settled that the admission of an involuntary
statement is subject to a harmless-error analysis. Arizona v.
Fulminante, 499 U.S. 279, 310-11 (1991). As this is a 28 U.S.C.
§ 2254 habeas case, it is properly analyzed under the harmless
error standard set forth in Brecht v. Abrahamson, 507 U.S. 619
12
(1993), and adopted by this Court in Woods v. Johnson, 75 F.3d 1017
(5th Cir. 1996). An error requires habeas relief only if it "'had
[a] substantial and injurious effect or influence in determining
the jury's verdict.'" Brecht, 507 U.S. at 623 (quoting Kotteakos v.
United States, 328 U.S. 750 (1946)). Further, we review the
district court’s harmless error determination de novo. See Shaw v.
Collins, 5 F.3d 128, 132 (5th Cir. 1993).
As noted, the district court determined that the admission of
Johnson’s confession was harmful error. Again, we disagree. In
light of the overwhelming evidence of Johnson’s guilt presented at
trial, we are convinced, as we are required to be, that the
admission of Johnson’s false confession did not have a substantial
injurious effect or influence on the jury’s verdict. We summarize
the pertinent evidence:
Witness John Carter testified that Seward, Johnson’s co-
conspirator and a former roommate of Carter’s, intimated that a man
who lived uptown had offered Seward $2000 - $1000 up-front, $1000
at completion - to kill the man’s mother, as his grandmother was on
her deathbed and he feared his mother would take away his
inheritance unless she died first. Carter identified Johnson as
the man he had previously seen with Seward. Upon hearing of the
murder in the newspaper, Carter contacted a detective;5
5
The district court states that detectives first learned of
Carter as a potential witness through the coerced confession of
Seward. As such, concludes the district court, Carter’s testimony
does not warrant consideration in the harmless error analysis, as
13
Dr. Crumpler testified that he and his wife had been
threatened by Johnson on several occasions beginning in 1971. On
one such occasion, Johnson, wielding a gun, threatened: “I’m going
to get rid of both of you. I’m not going to do it myself. I’ve
got lots of friends who’ll be quite willing to do it for a very
small amount of money, and, you can be sure when I do it, I’ll have
a good alibi. . . .” In addition to threats, Dr. Crumpler
testified that Johnson struck his mother on one occasion and had
unleashed a tear bomb in his mother’s home. The doctor further
testified that Johnson had a long-term concern about receiving his
share of his grandfather’s estate, now in his grandmother’s
possession;
Dr. Crumpler identified Seward in court as the shooter, after
previously giving a tentative identification from a photographic
line-up;
Johnson’s cousin, India Bradley, testified that when she went
to her grandmother’s home shortly after the shooting to inform
Johnson and her grandmother of the tragic event, she found Johnson
there with Seward. Bradley testified that Johnson replied “[t]he
bitch is dead” upon being informed of his mother’s death. Johnson
it is tainted by the illegality of its source. Setting aside the
more-difficult question as to whether evidence obtained through the
coerced confession of a co-conspirator is inadmissable, our review
of Seward’s confession reveals that he did not, in fact, name
Carter as a witness. Thus, Carter’s testimony that he first
contacted the police is unrebutted in the record, and we will
consider his testimony in our harmless error calculation.
14
further inquired as to whether Dr. Crumpler would live before
Bradley even had an opportunity to report that he had been shot as
well. Bradley testified that Johnson subsequently stated that
“[t]his is the happiest day of my life. I’ll dance a jig on her
grave;”
Johnson’s roommate, Allen Armstrong, corroborated Bradley’s
testimony that Johnson was joyous about his mother’s death;
Thomas Johnson, Johnson’s brother, testified that in the
months prior to the murder, Johnson talked a great deal about his
desire for their mother’s death and about having her killed. In
August and September of 1997, Johnson told his brother on at least
three occasions that he was not going to kill his mother himself,
but that he would hire someone to do the job, and he would perfect
his alibi. Johnson’s brother testified that Johnson told him all
the siblings would benefit from his taking the risk because they
would each get an inheritance from his grandmother. Johnson’s
brother corroborated the earlier testimony that Johnson feared
losing his inheritance if his grandmother dies while his mother was
sill alive. Johnson apparently related to his brother his belief
that his mother changed her citizenship from Louisiana to North
Carolina, in order to avoid the law of forced heirship. In
September, 1977, Johnson’s brother testified that Johnson informed
him that it was crucial that his mother die before his grandmother
and that he would have to kill her soon;
Finally, police recovered a pellet from a tree in Johnson’s
15
backyard, which an expert in firearms identification testified was
fired from the same gun used to shoot Mrs. Crumpler.
Thus, our review of the sum of the evidence, disregarding
Johnson’s confession,6 convinces us that the jury was presented
with more than sufficient evidence to find Johnson guilty beyond a
reasonable doubt. We pause only briefly to note that the district
court did not consider the bulk of this evidence in reaching the
opposite conclusion on harmfulness. The admission of the confession
did not have a substantial and injurious influence on the jury’s
verdict, therefore, the admission of the confession was harmless
and the district court erred in granting relief on this issue.
III. CONCLUSION
Because we find that the district court erred in not
recognizing the state procedural bar to Johnson’s Cage claim, we
REVERSE the district court’s grant of habeas relief as to this
claim, and REMAND the issue to the district court for further
proceedings. As we further find that the admission of Johnson’s
confession was harmless error, we also REVERSE the district court’s
grant of habeas relief as to this claim and RENDER judgement in
favor of respondent.
6
As noted previously, the confession itself was a false
confession, in which Johnson stated that he shot both Dr. and Mrs.
Crumpler. Whatever his motivation in providing this false
confession - perhaps in an effort to secure the release of the only
eye-witness, as respondent speculates - the state did not rely upon
it in presenting its case to the jury, a fact which only bolsters
our conclusion, albeit unnecessarily, that admission of the
statement was harmless.
16
REVERSED and REMANDED, in part.
17