United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
For the Fifth Circuit December 15, 2004
Charles R. Fulbruge III
Clerk
No. 03-51102
MICHAEL DEWAYNE JOHNSON,
Petitioner-Appellant,
VERSUS
DOUG DRETKE, Director, Texas Department of Criminal Justice,
Correctional Institutions Division
Respondent-Appellee.
Appeal from the United States District Court
For the Western District of Texas
Before DeMOSS, BENAVIDES and DENNIS, Circuit Judges.
DeMOSS, Circuit Judge:
Petitioner Michael Dewayne Johnson (“Johnson”), a Texas inmate
sentenced to die for the murder of Jeffrey Michael Wetterman, seeks
a certificate of appealability (“COA”) from this Court on two
issues of law. Johnson claims that David Vest, an accomplice and
witness at his trial, confessed to the crime in a factual
stipulation entered under oath prior to his testimony in Johnson’s
trial. The district court found Johnson did not meet the
successive petition requirements, and in the alternative, if he
did, that his claims did not merit relief. Johnson seeks a COA
from the district court’s denial of relief. For the reasons stated
here, the Court grants a limited COA on the following issues: (1)
whether the alleged prosecutorial misconduct claims meet the due
diligence requirement of 28 U.S.C. § 2244(b)(2)(B)(i); and (2) if
so, whether Johnson’s prosecutorial misconduct claims merit relief.
In all other respects, Johnson’s request for COA is denied.
I. BACKGROUND
On May 8, 1996, Johnson was convicted and received the death
penalty for the 1995 murder of Jeff Wetterman, a gas station clerk
in Lorena, Texas. Wetterman was shot and killed when he approached
Johnson and David Vest, while Vest was pumping gas into a stolen
car. The Texas Court of Criminal Appeals (“TCCA”) affirmed the
conviction and sentence, and the United States Supreme Court denied
certiorari. Johnson filed a state application for habeas relief,
which was denied on February 18, 2000, after a hearing was held.
The TCCA also denied the application based on the trial court’s
findings. In September 2000, Johnson filed his first application
for federal habeas relief in the Western District of Texas. That
request was denied, as was his request for a COA and his writ of
certiorari to the Supreme Court.
Approximately one week before his scheduled execution, Johnson
filed a second state habeas application on February 13, 2003. The
TCCA determined that Johnson’s application was an abuse of the writ
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under Article 11.071 of the Texas Code of Criminal Procedure and
dismissed his application. Johnson requested leave from this Court
to file a successive federal petition. A majority of this panel
granted his motion to file a successive writ on February 25, 2003,
authorizing the district court to consider a successive habeas
corpus application and granting a stay of execution.
The case returned to the district court, which was required to
dismiss Johnson’s motion without reaching the merits if it believed
the claim did not meet the standards for a successive petition.
See 28 U.S.C. § 2244(b)(4); Reyes-Requena v. United States, 243
F.3d 893, 899 (5th Cir. 2001)(citing Bennett v. United States, 119
F.3d 468, 469-70 (7th Cir. 1997)). The district court so dismissed
Johnson’s application, but then proceeded to the merits of his
claim and denied habeas relief. Johnson now moves this Court to
issue a COA from that denial, claiming that he meets the
requirements of § 2244(b)(2)(B) and that he is entitled to habeas
relief.
II. ISSUES PRESENTED
Johnson claims that Vest, an accomplice to the murder and a
witness at Johnson’s trial, stipulated under oath that Vest shot
Wetterman. Vest entered his factual stipulation under oath on
February 29, 1996, in the form of a document entitled, “Waiver of
Jury Trial, Stipulation of Evidence and Judicial Confession –
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Felony Plea of Guilty” (the “stipulation”).1 After entering a plea
agreement, Vest testified at Johnson’s trial that Johnson shot and
killed Wetterman. The jury did not learn of Vest’s sworn
confession in the stipulation.
Johnson seeks a COA to appeal the district court’s rejection
of his successive petition on the following issues: (1) Johnson was
deprived of due process of law because the prosecution withheld
material evidence, Vest’s stipulation, in violation of Brady v.
Maryland, 373 U.S. 83 (1963), and because the prosecution knowingly
permitted false testimony to be presented to the jury in violation
of Giglio v. United States, 405 U.S. 150 (1972); and (2) his
counsel’s performance was prejudicially deficient under Strickland
v. Washington, 466 U.S. 668 (1984).
III. DISCUSSION
Johnson filed his section 2254 petition for a writ of habeas
corpus after the effective date of AEDPA. Therefore, his petition
is subject to the procedures imposed by AEDPA.
Under AEDPA, a petitioner must obtain a COA before an appeal
can be taken to this Court. 28 U.S.C. § 2253(c); see also Miller-
El v. Cockrell, 537 U.S. 322, 335-36 (2003). A COA will be granted
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There, Vest swore: “I stipulate that I did then and there,
while in the course of committing a theft of property and with
intent to obtain and maintain control of the property, namely
gasoline, intentionally and knowingly cause bodily injury to
JEFFREY MICHAEL WETTERMAN, by shooting him with a handgun, and
did use and exhibit a deadly weapon, namely said firearm.”
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when the petitioner makes “a substantial showing of the denial of
a constitutional right.” 28 U.S.C. § 2253(c)(2). A petitioner
makes such a showing if he demonstrates that “reasonable jurists
could debate whether (or, for that matter, agree that) the petition
should have been resolved in a different manner or that the issues
presented were adequate to deserve encouragement to proceed
further.” Miller-El, 537 U.S. at 336 (internal quotation marks and
citation omitted). “[A] claim can be debatable even though every
jurist of reason might agree, after the COA has been granted and
the case has received full consideration, that petitioner will not
prevail.” Id. at 338.
Johnson seeks a COA from the district court’s denial of his
successive petition. Johnson may proceed with his successive
petition, which does not present an issue of new law to be applied
retroactively, if he shows:
(B) (i) the factual predicate for the claim could not
have been discovered previously through the exercise of
due diligence; and
(ii) the facts underlying the claim, if proven and
viewed in light of the evidence as a whole, would be
sufficient to establish by clear and convincing evidence
that, but for constitutional error, no reasonable
factfinder would have found the applicant guilty of the
underlying offense.
28 U.S.C. § 2244(b)(2)(B)(i)-(ii).
The district court found that Johnson could not meet the due
diligence requirement of § 2244(b)(2)(B)(i) because “no reasonable
argument . . . could establish that [Vest’s stipulation] could not
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have been discovered through the exercise of due diligence” and
Johnson failed to establish that no reasonable factfinder would
have found him guilty but for the alleged constitutional errors.
Upon determining that Johnson’s petition did not meet the
successive writ requirements, rather than concluding its analysis,
the district court proceeded to address and deny the merits of
Johnson’s claims. Therefore, this Court must consider whether a
COA should issue on each of Johnson’s claims, which were denied on
both procedural and substantive grounds by the district court.
Because this case involves the death penalty, “any doubts as to
whether a COA should issue must be resolved in [Johnson’s] favor.”
Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir. 2000).
A. Prosecutorial Misconduct
Johnson’s first claims, his allegations of prosecutorial
misconduct, are based upon the argument that defense counsel was
not provided with the factual stipulation related to Vest’s plea.
Johnson argues this stipulation established doubt as to Johnson’s
guilt and impeaches Vest’s testimony at Johnson’s trial and
therefore should have been disclosed to Johnson’s counsel. In
addition, Johnson claims that the prosecution knowingly presented
false testimony to the jury when it permitted Vest to testify
contrary to his sworn stipulation.
According to Johnson, the prosecution offered a plea agreement
to Vest, obtained his factual stipulation averring his own guilt as
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the shooter, offered Vest’s testimony at trial against Johnson that
Johnson was the shooter, and failed all along to disclose Vest’s
prior averment to either Johnson’s defense counsel or the jury.
Thereby, Johnson argues, the prosecution violated Brady and
knowingly permitted false testimony to be presented to the jury.
Johnson claims that reasonable jurists could debate the
district court’s determination that Johnson failed to meet the due
diligence requirement for successive writs. We agree. Johnson
argues he did not know of Vest’s stipulation nor could he have been
expected to locate it because his case was conducted under the Open
File Rule where the state promises to disclose relevant materials.
Johnson argues that Vest’s confession is relevant to his defense
and he was harmed by not knowing of it because he may have
presented a different defense or impeached Vest with the statement.
Accordingly, the applicable successive writ requirements of
due diligence (i.e., whether Johnson should have or could have
known of the stipulation) and harm under AEDPA, arguably collapse
into Johnson’s Brady claim. This Circuit has not yet determined
the interaction of prosecutorial duty to disclose and petitioner’s
due diligence requirements prior to filing a successive writ. If
Johnson ultimately demonstrates that the prosecution bore a duty to
disclose Vest’s stipulation and failed to do so, then reasonable
jurists could debate whether Johnson failed to meet the successive
writ requirement of due diligence. In other words, it is arguable
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that Johnson need not demonstrate his own diligence to locate
Vest’s stipulation if disclosure was the duty of the state and the
state failed in this regard.
Although this record does not appear to support an allegation
of intentional concealment by the prosecution as the district court
noted, the requirements on the prosecution to produce exculpatory
evidence to defense counsel do not demand such intent. See, e.g.,
Kyles v. Whitley, 514 U.S. 419, 433-34, 437 (1995); United States
v. Bagley, 473 U.S. 667, 676 (1985). Prosecutorial suppression of
evidence favorable to the defense “violates due process where the
evidence is material to guilt or to punishment, irrespective of the
good faith or bad faith of the prosecution.” Brady, 373 U.S. at
87. A defendant need not request the favorable and material
evidence to trigger the prosecution’s duty to disclose. See
Strickler v. Greene, 527 U.S. 263, 280 (1999) (“We have since
[Brady] held that the duty to disclose such evidence is applicable
even though there has been no request by the accused and that the
duty encompasses impeachment evidence as well as exculpatory
evidence.” (citations omitted)).
Johnson also casts his prosecutorial misconduct claims in
relation to the presentation of false testimony by the prosecution.
The Supreme Court’s analysis in Giglio was grounded on elements of
both Brady and Napue v. Illinois, 360 U.S. 264 (1959). Giglio
involved a violation of due process predicated upon a failure, pre-
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trial, to disclose material evidence favorable to the defense,
which then led to the prosecution’s presentation of evidence
contrary to the favorable evidence at trial. Giglio, 405 U.S. at
151-53. There, the material evidence was a prior immunity
agreement with the state’s primary witness. Id. at 154-55.
Johnson’s arguments referencing Giglio augment his Brady claim of
prosecutorial misconduct. Therefore, there is no need to grant an
additional COA on that issue. Rather, the issue of prosecutorial
misconduct encompasses both the alleged failure to disclose and the
resulting alleged knowing presentation of false testimony.
The State argues that Johnson’s petition is additionally time-
barred and procedurally defaulted. The district court agreed,
finding that Johnson failed to raise this petition within the one-
year limitation period established in 28 U.S.C. § 2244(d).
However, neither the district court nor the State considered the
possible effect of a potentially viable prosecutorial misconduct
claim on the question of the petition’s timeliness. If Johnson
demonstrates, as he will be permitted an opportunity to do, that
the State should have and failed to disclose Vest’s stipulation,
then he might demonstrate that his petition was filed within one
year of “the date on which the factual predicate of the claim . .
. presented could have been discovered through the exercise of due
diligence.” 28 U.S.C. § 2244(d)(1)(D). Similarly, the district
court’s determination that Johnson’s claims are procedurally
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defaulted may be in error if it is determined that the failure to
disclose Vest’s stipulation constituted a claim not “reasonably
available” at the time of the prior petition. See Fearance v.
Scott, 56 F.3d 633, 636 (5th Cir. 1995). In finding procedural
default, the district court relied upon the fact that Vest’s
stipulation was available in the public record. However, if the
State failed under a duty to disclose the evidence, then its
location in the public record, in another defendant’s file, is
immaterial. See Banks v. Dretke, 124 S. Ct. 1256, 1272-73 (2004);
Strickler, 527 U.S. at 280-81.
Thus, we hold that reasonable jurists could debate whether
Johnson has met the successive writ requirements and whether
Johnson’s claims of prosecutorial misconduct merit habeas relief.
Accordingly, a COA is granted and oral argument shall be permitted
on these two related issues.
B. Ineffective Assistance of Counsel
Johnson also requests a COA on his claim that trial counsel
performed ineffectively and prejudicially in failing to discover
and present to the jury Vest’s stipulation. In order to establish
this claim, Johnson must show that his counsel’s performance was
deficient and that Johnson was prejudiced by that deficient
performance. Strickland, 466 U.S. at 693-96. Whether the
representation was deficient is determined as measured against an
objective standard of reasonableness. Kitchens v. Johnson, 190
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F.3d 698, 701 (5th Cir. 1999). “A conscious and informed decision
on trial tactics and strategy cannot be the basis for
constitutionally ineffective assistance of counsel unless it is so
ill chosen that it permeates the entire trial with obvious
unfairness.” United States v. Jones, 287 F.3d 325, 331 (5th Cir.
2002)(quoting Garland v. Maggio, 717 F.2d 199, 206 (5th Cir.
1983)).
Johnson claims his counsel’s performance was deficient because
Vest’s stipulation to shooting Wetterman was not presented to the
jury. Johnson reiterates his belief that counsel did not have the
stipulation nor know of it but argues in the alternative that if
the stipulation were available to defense counsel, then counsel’s
failure to present it constituted deficient performance.
Regardless of counsel’s knowledge of the stipulation, though,
Johnson cannot demonstrate deficient performance. Defense counsel
made a strategic decision to present an alibi defense on Johnson’s
behalf. Given the “strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance,”
Strickland, 466 U.S. at 689, we cannot say that the choice to
present an alibi defense on Johnson’s behalf was deficient. The
fact that the alibi defense was not ultimately prevailing does not
inform the analysis. See id. at 690 (“The availability of
intrusive post-trial inquiry into attorney performance . . . would
encourage the proliferation of ineffectiveness challenges.
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Criminal trials resolved unfavorably to the defendant would
increasingly come to be followed by a second trial, this one of
counsel's unsuccessful defense.”).
It is beyond debate that defense counsel’s choice to defend
Johnson on the basis of an alibi falls within the wide range of
acceptable and sufficient representation and was objectively
reasonable. Because Johnson has not met the first prong of
Strickland, we need not reach the question of prejudice, id. at
697, and we deny his request for a COA on the ground of ineffective
assistance of counsel.
IV. CONCLUSION
For the foregoing reasons, Johnson’s request for a COA is
GRANTED as to two issues: (1) whether his alleged prosecutorial
misconduct claims meet the due diligence requirement of 28 U.S.C.
§ 2244(b)(2)(B)(i); and (2) if so, whether Johnson’s prosecutorial
misconduct claims merit relief. More specifically, the second
issue entails two questions: whether the government had an
obligation to disclose Vest’s stipulation and failed to do so,
harming Johnson; and whether the government knowingly solicited
material, false testimony at trial.
In all other respects, Johnson’s request for COA is DENIED.
It is further ORDERED that the Clerk of Court shall establish a
briefing schedule, set this appeal for oral argument, and notify
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this panel when briefing is completed.
COA GRANTED IN PART; DENIED IN PART.
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