United States Court of Appeals
Fifth Circuit
F I L E D
REVISED APRIL 9, 2007
March 28, 2007
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
_____________________ Clerk
No. 06-70013
_____________________
JOHNNY RAY JOHNSON,
Petitioner - Appellant,
versus
NATHANIEL QUARTERMAN, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS
DIVISION,
Respondent - Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas, Houston
_________________________________________________________________
Before JOLLY, DAVIS, and OWEN, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
Johnny Ray Johnson was convicted and sentenced to death for
the 1995 capital murder of Leah Joette Smith. In the post-
conviction proceedings the Texas courts upheld his conviction and
death sentence. In this federal habeas proceeding, the district
court denied relief on the ground that Johnson’s petition was not
timely filed under the filing limitation period of the
Antiterrorism and Effective Death Penalty Act (“AEDPA”), and that
he had not demonstrated the rare and exceptional circumstances
necessary for application of the doctrine of equitable tolling.
Alternatively, the district court held that the state court did not
unreasonably deny relief on Johnson’s claim that his counsel
rendered ineffective assistance. The district court denied
Johnson’s request for a certificate of appealability (“COA”).
Before us, Johnson requests a COA from this court to appeal
the district court’s denial of relief. With respect to the
limitations issue, Johnson argues both equitable and statutory
tolling of the deadline. Secondly, Johnson requests a COA for his
claim that his counsel rendered ineffective assistance by failing
to conduct a complete and thorough mitigation investigation. He
contends that readily-available evidence regarding his troubled
childhood would have been discovered and that this evidence could
have offered some degree of understanding of and explanation for
his conduct as an adult. His third ground for a COA is that
counsel were ineffective in failing to have a mental health expert
conduct a psychological evaluation, and that this failure was
unreasonable trial strategy because it was based on insufficient
investigation.
We deny Johnson’s request for a COA. We conclude that the
district court’s holding that Johnson’s federal habeas petition was
untimely under AEDPA is not debatable among jurists of reason. We
thus find it unnecessary to address the ineffective assistance
claim, and DENY the COA.
2
I.
A.
Johnson was convicted and sentenced to death for the March 27,
1995 capital murder of Leah Joette Smith during the course of
committing or attempting to commit aggravated sexual assault. The
State presented evidence, including Johnson’s confession, that
Johnson offered to give Smith, who was addicted to crack cocaine,
some crack cocaine in exchange for sex. After Smith smoked the
crack, she refused to have sex with Johnson. He became angry and
grabbed her, ripped her clothing off, and threw her to the ground.
When she fought back with a wooden board, Johnson repeatedly struck
her head against the cement curb. After he hit her head against
the cement three or four times, she stopped fighting. He then
sexually assaulted her. During the assault, Smith told Johnson
that he had better enjoy it because she was going to file rape
charges against him. Johnson confessed that he got very angry when
Smith hit him with the board and that it was “like something in my
head was just saying “‘KILL, KILL, KILL.’” After sexually
assaulting Smith, Johnson stomped on her face five or six times.
He walked away, but realized that he had left his wallet at the
scene, so he returned. In his confession, he stated that when he
saw Joette’s body face up and naked, he sexually assaulted her
again and then picked up his wallet and her boots and left Smith
there on the ground to die.
3
Smith sustained numerous severe injuries to her mouth, face,
head, and neck: her teeth were knocked out, her tongue was
displaced, both sides of her jaw bone were fractured, and she
sustained scalp lacerations and a subdural hematoma. The medical
examiner testified that she died as a result of swallowing her own
blood that had accumulated in the back part of her throat when her
jaw bones were fractured. He testified that the subdural hematoma
also contributed to her death, but that she could have survived it
had she received prompt medical attention. The medical examiner
testified that Smith did not die instantly, because it takes a
while for the blood to accumulate in the back of the throat.
B.
The jury convicted Johnson for Smith’s brutal murder. Then at
the punishment phase, the jury heard the State’s evidence of
Johnson’s extensive criminal history, beginning in 1975, including
numerous other brutal sexual assaults and murders.
Johnson’s niece, Elizabeth Wright, testified that when she was
eight or nine years old, Johnson asked her to walk to a store in
Houston with him. As they were walking down a trail leading to the
back of the store, Johnson knocked Elizabeth down, covered her
mouth, pulled her pants to the side, and raped her. He threatened
to kill her if she ever told anyone.
In 1983, Johnson was convicted of sexual assault in Travis
County and was sentenced to five years in prison. He confessed to
raping numerous women in Houston and Austin after his release from
4
prison. When he drove a cab, he stated that he would pick up
prostitutes and take them out to the country, rape them, and leave
them there, naked.
Theresa Lewis testified that Johnson picked her up in his cab
in 1986. She got into the backseat, but Johnson insisted that she
sit in the front seat. When he asked her to have sex with him in
exchange for $20, she refused and told him she was not a whore.
This made him so angry that he pulled over, grabbed her by the neck
and began choking her. When she fought back, he struck her in the
face with his fist, and then raped her. He was convicted for that
crime in 1987, and sentenced to five years in prison.
Johnson then met Dora Ann Moseley, a prostitute, who became
his wife. They moved to Austin in 1991 and had some children
together. Johnson once beat her so badly that he claims he would
have killed her if the police had not been called. She filed a
police report a couple of weeks later, after he beat her again.
Johnson spent six months in jail for that beating.
Johnson confessed that in the summer of 1994, he met a girl on
11th Street in Austin. They smoked crack and drank, and when she
refused to have sex with him, he beat her. He said that she pulled
out a razor and cut him on the left side of his neck and that he
then bashed her head in and stomped on her. He then claimed that
he took her head and gave himself oral sex before having “regular”
sex with her. He left her dead body behind a drug store on 11th
Street.
5
Johnson confessed that he then raped a woman named Amy on top
of a hill across from the Austin police station. He then raped a
girl named Eva. When Eva tried to steal his crack cocaine, he
grabbed her by the hair, smashed her head into a rock, and then
raped her. He said that Eva ran away, yelling and screaming.
Shortly before Christmas in 1994, Johnson confessed that he lured
a girl into a graveyard in exchange for crack cocaine, and that he
raped her three or four times and “slapped her around.” He
returned to Houston at the end of December 1994.
In February 1995, Johnson sexually assaulted Debra Jenkins,
his brother’s common-law wife’s sister-in-law. She testified that
he grabbed her by the throat, threw her onto a bed, and began
choking her. He cut the crotch of her pajamas with a pair of
scissors, and raped her twice.
On March 27, 1995, a citizen found the badly decomposed body
of a female in her thirties, face-down in a water-filled gully near
some railroad tracks. The victim had sustained numerous
lacerations on her face, as well as severe injuries to her mouth,
and there was evidence of manual strangulation. Johnson confessed
that he raped and killed this woman, whose identity had not been
determined as of the time of Johnson’s trial. He said he met her
at a crack house and offered her some crack cocaine in exchange for
sex. She tried to leave after he refused to give her more crack
until she had sex with him, so he grabbed her by the throat and
hair and threw her to the ground. She grabbed a rock and hit him
6
on the head and he became angry and banged her head on the railroad
track. After she passed out, he sexually assaulted her, then
dragged her to the gully and left her there.
The jury also heard his confession that, three days later, he
killed another woman. He said that he took her to a warehouse to
smoke some crack cocaine. He became angry when she smoked his
crack but refused to have sex with him, so he grabbed her by the
neck and threw her down on the ground and sexually assaulted her
while he choked her. He sexually assaulted her again later, and
they smoked some more crack. When she jumped up, he caught her by
the hair. When she kept fighting, he banged her head on the
pavement until she became unconscious.
The evidence of his brutal rapes and murders seemed endless.
On April 28, 1995, the partially clothed body of a female was found
underneath a highway overpass in Houston. She had sustained
massive head injuries, including a fractured skull and cheekbone,
and a large chunk of concrete with blood all over it was found near
her head. The autopsy revealed that she died from a crushed head
due to blunt trauma and asphyxia due to strangulation. The marking
on her throat was consistent with someone placing his foot on her
throat and stepping down. Johnson confessed that he killed this
woman, who had not been identified as of the time of his trial.
They smoked crack cocaine together and he became angry when she
refused to have sex with him. She hit him with a wine bottle and
he grabbed her and swung her down to the ground. He grabbed her
7
neck and banged her head on a rock. After she quit fighting, he
sexually assaulted her, then hit her head with a rock and left.
Finally, Angela Morris testified that on May 5, 1995, Johnson
grabbed her by the neck as she was walking down the street. He
took her down a driveway, struck her, threatened to kill her, and
raped her while holding a knife in his hand. He then tied her up
with rags and left.
C.
Prior to trial, Johnson’s counsel filed motions for fees to
hire a mental health expert and to hire an investigator and
mitigation expert. The trial court granted both motions. Because
Johnson’s trial counsel who handled the punishment phase is
deceased, the habeas record is incomplete concerning the results of
employing these experts. We do know, however, that the final
decision of his attorney at the punishment phase was to call only
one witness, Dr. Windel Dickerson, a psychologist. We also know
that Dr. Dickerson was called only to testify that prisoners get
less violent as they grow older and that prisoners whose crimes
involved drug use were less likely to commit acts of violence in
the controlled setting of a prison. In this connection, the jury
was instructed that Johnson, who was 37 years old, would not be
eligible for parole until he had served forty years in prison.
This limited use of the expert at trial may well have been trial
strategy (given Johnson’s horrendous record of rape and murder) as
other counsel involved in the trial have suggested (see infra, page
8
11), but because of the death of trial counsel, we are left only to
speculate.
The record further shows that his attorney introduced
Johnson’s disciplinary records from his three prior incarcerations
in the Texas Department of Criminal Justice, and argued that these
records showed his lack of violent behavior while incarcerated and
thus indicated that he would not pose a danger to society if
sentenced to life imprisonment.
In closing argument, defense counsel urged the jury to
consider the fact that, if he were sentenced to life imprisonment,
Johnson would have to serve forty years in prison before he would
even be eligible for parole, and argued that Johnson’s prison
disciplinary records, introduced as exhibits by the defense,
demonstrated his non-violent behavior while incarcerated. Counsel
also pointed to Dr. Dickerson’s testimony that people are less
likely to commit crimes as they get older and that they are less
likely to commit crimes of violence in the structured and
controlled setting of a prison, especially given that there would
be no alcohol, crack cocaine, or prostitutes available to Johnson
in prison.
The jury returned a punishment verdict after deliberating for
only one hour and fifteen minutes. It answered the special issue
on future dangerousness “yes” and answered the special issue on
mitigation “no”.
9
Johnson’s conviction and sentence were affirmed on direct
appeal. Johnson v. State, No. 72,422 (Tex. Crim. App. 1998).
II.
A.
Johnson filed a petition for state habeas relief on July 17,
1998. He alleged that his trial counsel rendered ineffective
assistance (1) at the guilt-innocence phase, when they failed to
have him psychologically evaluated for the purpose of advancing an
insanity defense; (2) at the punishment phase when they failed to
have him psychologically evaluated for use as mitigation evidence,
when records from the Texas Department of Criminal Justice
indicated that he had a history of major emotional disorder which
included both auditory and visual hallucinations; and (3) at the
punishment phase, when they failed to investigate adequately his
history, when such historical information was essential in the
preparation of a biopsychosocial assessment by an expert in the
area of mitigation, thereby denying him the opportunity to present
mitigating evidence. Johnson’s discussion of these claims consists
of three pages in his state habeas application, and he did not
present any affidavits or other evidence in support of them.
Johnson was represented by attorneys Guerinot and Millin at
trial. Guerinot handled the guilt-innocence phase, and Millin was
responsible for the punishment phase. As we have earlier
indicated, Millin had died prior to the commencement of the state
habeas proceedings and his files could not be located. The state
10
habeas court ordered Guerinot to submit an affidavit responding to
Johnson’s ineffective assistance claims. In his affidavit,
Guerinot stated that Johnson never exhibited any signs of insanity
and always appeared to be lucid, competent, and sane; and that he
believed that Johnson was examined by a mental health expert, and
that Millin decided not to use the information resulting from the
examination because it was “severely detrimental” to Johnson’s
case. Regarding the claim of failure to investigate Johnson’s
personal history, Guerinot stated that in the light of the evidence
that Johnson had terrorized and raped members of his own family, it
was unlikely that evidence in that area would have been favorable
to the defense.
One of the prosecutors at trial, Bill Hawkins, also submitted
an affidavit in the state habeas proceeding. He stated that Millin
told him that he could not afford to put on any witnesses in the
mental health area because such testimony would hurt a lot more
than it helped.
The state habeas court found that a psychological interview of
Johnson was conducted on December 23, 1983 (more than ten years
before the murder of Smith), when Johnson was an inmate in the
Texas Department of Criminal Justice. In the interview, he stated
that he had visions of his mother and heard her telling him what to
do. He stated that he twice tried to kill himself, once in the
county jail, and once by jumping off a cliff. A month after that
interview, psychologist Wilson Lilly stated in clinic notes:
11
“Inmate Johnson was called in on recommendation of the mental
health screening process. He has a history of major emotional
disorder which included both auditory and visual hallucinations.
Currently, he denies such symptoms. His mental status is clear and
appropriate except for a mild depression of mood. He does not
desire mental health services at this time, but was advised to seek
[treatment] should any of his past symptoms return.” The state
habeas court found that there was no mention of any mental health
problems during the records of Johnson’s later incarcerations, and
that health questionnaires completed in July and October 1992
stated that there were no signs of a mental disorder.
The state habeas court concluded that trial counsel were not
ineffective in failing to investigate or present an insanity
defense, and that Johnson was not prejudiced thereby. It made the
following conclusions with respect to his claims of ineffective
assistance for failure to investigate his history and failure to
have him psychologically evaluated for purposes of mitigation:
Because trial counsel believed that the
evidence concerning [Johnson]’s personal
history would not have been favorable to
[Johnson]’s defense, trial counsel were not
ineffective in failing to present evidence of
[Johnson]’s history for the purposes of
mitigation....
Because the evidence showed that [Johnson] had
terrorized and raped members of his own
family, it was reasonable for trial counsel to
limit [their] investigation of [Johnson]’s
history for the purposes of mitigation....
12
Because trial counsel believed that testimony
of psychological witnesses would have hurt
[Johnson]’s case more than it helped, it was
reasonable for trial counsel to cho[o]se not
to put such witnesses on the stand for the
purposes of mitigation....
Because [Johnson] had raped and terrorized
members of his own family, [Johnson] has
failed to show that he was prejudiced by any
deficient performance on the part of his trial
counsel in failing to put forth evidence of
[Johnson]’s history for the purposes of
mitigation.
Because trial counsel believed that testimony
of psychological witnesses would have hurt
[Johnson]’s case more than it helped,
[Johnson] has failed to show that he was
prejudiced by any deficient performance on the
part of his trial counsel in failing to put
forth the testimony of any additional mental
health experts for the purposes of answering
the mitigation or future danger special
issues....
The Texas Court of Criminal Appeals adopted the state habeas
court’s findings of fact and conclusions of law and denied his
application for state habeas relief on February 18, 2004. Ex parte
Johnson, No. 57,854-01 (Tex. Crim. App. 2004). We now turn to the
federal habeas proceedings.
B.
Johnson’s federal habeas petition was stamped “filed” on
January 3, 2005. The district court held that the petition was
untimely filed and that Johnson was not entitled to the benefit of
equitable tolling. The district court denied relief on the
alternative ground that the state court did not unreasonably deny
13
relief on Johnson’s ineffective assistance claim. The district
court denied Johnson’s request for a COA.
III.
A.
Johnson now requests a COA from this court to appeal the
district court’s ruling that his petition was untimely filed and
its alternative ruling that he is not entitled to relief on his
ineffective assistance of counsel claim.
To obtain a COA, Johnson must make “a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(1)(A).
With respect to the district court’s procedural ruling that
Johnson’s habeas petition was not timely filed, Johnson must show,
“at least, that jurists of reason would find it debatable whether
the petition states a valid claim of the denial of a constitutional
right and that jurists of reason would find it debatable whether
the district court was correct in its procedural ruling.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000). To make a substantial showing
of the denial of a constitutional right with respect to the
district court’s alternative holding that the state court did not
unreasonably deny relief on Johnson’s ineffective assistance of
counsel claim, Johnson must demonstrate “that jurists of reason
could disagree with the district court’s resolution of his
constitutional claims or that jurists could conclude the issues
presented are adequate to deserve encouragement to proceed
further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).
14
In making our decision whether to grant a COA, we conduct a
“threshold inquiry”, which consists of “an overview of the claims
in the habeas petition and a general assessment of their merits.”
Id. at 327, 336. “While the nature of a capital case is not of
itself sufficient to warrant the issuance of a COA, in a death
penalty case any doubts as to whether a COA should issue must be
resolved in the petitioner’s favor.” Ramirez v. Dretke, 398 F.3d
691, 694 (5th Cir. 2005) (internal quotations, citations, and
brackets omitted).
We address Johnson’s equitable tolling claim first, and then
turn to his statutory tolling claim, which was not presented to the
district court. Because we conclude that Johnson has not made a
substantial showing that the district court erred in its procedural
ruling, it is not necessary for us to address Johnson’s request for
a COA on the ineffective assistance claim.
B.
AEDPA establishes a one-year statute of limitations for
seeking federal habeas corpus relief from a state-court judgment.
28 U.S.C. § 2244(d)(1). That period begins to run from “the date
on which the [state court] judgment became final by the conclusion
of direct review or the expiration of the time for seeking such
review.” 28 U.S.C. § 2244(d)(1)(A). The one-year period is
tolled, however, during the pendency of a state prisoner’s post-
conviction proceedings in state court. 28 U.S.C. § 2244(d)(2).
15
Johnson’s judgment of conviction became final on May 26, 1998.
Therefore, the limitations period began to run on May 27, 1998.
The limitations period was tolled, however, from July 17, 1998,
when Johnson filed his state habeas petition, until February 18,
2004, when the Texas Court of Criminal Appeals denied state habeas
relief. Therefore, Johnson had 313 days remaining after his state
writ was denied, or until December 27, 2004, to file his federal
habeas petition.
Johnson does not dispute that the deadline for filing his
federal habeas petition was Monday, December 27, 2004. In the
district court, Johnson contended that, while putting finishing
touches on the petition at approximately 7:30 p.m. on the due date,
his counsel’s computer failed. Johnson also claimed that the State
agreed to extend the deadline for filing the petition until “at
least” Thursday, December 30. Johnson maintained that this date
was “just an estimate,” and that his counsel “assumed ... that the
agreed upon extension period was somewhat flexible.” Counsel for
the State denied agreeing to any extension of any length. Johnson
asserts that the petition was filed on Friday, December 31,
although it was not stamped “filed” by the district court clerk’s
office until January 3, because there was a problem with the time-
stamp at the court’s after-hours drop box. Johnson argued to the
district court that he is entitled to equitable tolling of the
statute of limitations because of the computer failure and the
State’s alleged agreement to extend the deadline.
16
The district court stated that the most generous reading of
Johnson’s claim of equitable tolling is that the State agreed to an
extension of time until December 30, but by Johnson’s own
admission, he did not attempt to file the petition until December
31. Although he justified the late filing by asserting that he
“assumed” the deadline was flexible, he pointed to no statement by
the State supporting that assumption and thus could not claim that
the State in any way misled him. The district court held that
Johnson’s explanation for his late filing, at most, rises only to
the level of excusable neglect, that does not support equitable
tolling. The court noted that Johnson offered no reason why he
could not have filed a skeletal petition (handwritten, if
necessary) either by the statutory deadline or by the allegedly
extended deadline. The court stated that Johnson could have
supplemented the skeletal petition after the computer was repaired.
Therefore, the court concluded that Johnson had failed to
demonstrate the rare and exceptional circumstances required for
application of equitable tolling.
The State points out that Johnson’s counsel were appointed on
March 12, 2004, and thus had nine months in which to prepare the
petition before the deadline of December 27, 2004. The State
observes that the computer failure occurred at 7:30 p.m. on the
very day the petition was due to be filed, and thus counsel waited
until the last minute to complete the petition, demonstrating a
17
lack of diligence which cannot support application of the doctrine
of equitable tolling.
The Supreme Court has not decided whether the AEDPA
limitations period may be equitably tolled. In Lawrence v.
Florida, 127 S.Ct. 1079 (2007), however, the Supreme Court, when
assuming without deciding that equitable tolling is available, was
specific: To be entitled to equitable tolling, the petitioner
“must show (1) that he has been pursuing his rights diligently, and
(2) that some extraordinary circumstance stood in his way.” Id. at
1085 (internal quotations and citation omitted). In accord with
the Lawrence standard, our court has held that equitable tolling of
the AEDPA limitations period is available “‘in rare and exceptional
circumstances’ where it is necessary to ‘preserve[] a plaintiff’s
claims when strict application of the statute of limitations would
be inequitable.’” Fierro v. Cockrell, 294 F.3d 674, 682 (5th Cir.
2002) (quoting Davis v. Johnson, 158 F.3d 806, 810-11 (5th Cir.
1998)). We have applied equitable tolling where the district court
has done something to mislead the petitioner into believing that
his petition is due after the limitations period has expired.
Compare Prieto v. Quarterman, 456 F.3d 511, 514-15 (5th Cir. 2006)
(equitable tolling applied where petitioner requested and received
extension of time from district court before deadline to file
habeas petition and relied in good faith on that extension) and
United States v. Patterson, 211 F.3d 927, 931-32 (5th Cir. 2000)
(applying equitable tolling where district court granted pro se
18
prisoner’s request to dismiss petition without prejudice so that
prisoner could retain counsel and refile petition later), with
Fierro v. Cockrell, 294 F.3d at 682-84 (refusing to apply equitable
tolling where district court issued scheduling order at
government’s request setting deadline for habeas petition outside
limitations period, because the scheduling order was requested and
issued after the limitations period had expired and thus neither
the request nor the order could have contributed to Fierro’s
failure to file within the limitations period).
“[N]either ‘excusable neglect’ nor ignorance of the law is
sufficient to justify equitable tolling.” Id. at 682. The court
in Fierro “recognize[d] that the application of procedural rules
may appear formalistic -- particularly in a death penalty case --
when applied to bar a facially plausible habeas petition because of
an error by habeas counsel.” Id. at 684. However, the court also
noted “that Congress has imposed a strict one-year limitations
period for the filing of all habeas petitions under the AEDPA,
subject only to the narrowest of exceptions.” Id. The court
concluded that the circumstances of Fierro’s case -- his counsel’s
mistaken assumption that the statute of limitations did not apply
to successive habeas petitions and the scheduling order setting the
deadline for filing the petition beyond the limitations period --
were not “the sort of rare and exceptional circumstances that would
justify equitable tolling.” Id.
19
In Lawrence, also a death penalty case, the petitioner argued,
inter alia, “that his counsel’s mistake in miscalculating the
limitations period entitle[d] him to equitable tolling.” 107 S.Ct.
at 1085. The Supreme Court rejected that contention, noting that,
“[i]f credited, this argument would essentially equitably toll
limitations periods for every person whose attorney missed a
deadline.” Id. The Court stated that “[a]ttorney miscalculation
is simply not sufficient to warrant equitable tolling, particularly
in the postconviction context where prisoners have no
constitutional right to counsel.” Id.
The circumstances of Johnson’s case are more like the
circumstances in Fierro and Lawrence than those in Prieto and
Patterson. His counsel was well aware of the deadline and had
ample time to prepare the petition, but waited until the very last
minute to complete it. Even when counsel’s computer failed on the
evening of the due date, counsel could have filed a skeletal
handwritten petition and supplemented it later. Even accepting
Johnson’s counsel’s assertion that the State’s counsel agreed to
extend the deadline until December 30 (which the State denies)
Johnson’s counsel must have known that an attorney for the State
has no authority to extend the statutory deadline established by
Congress. In any event, counsel still did not file the petition
until December 31, relying on a completely unsupported “assumption”
that the extension allegedly agreed to by the State was “flexible”.
20
We are not persuaded that reasonable jurists would find
debatable the district court’s decision that Johnson is not
entitled to equitable tolling of the statute of limitations based
on the circumstances present in this case. Counsel was aware of
the deadline, and had months in which to complete the petition, but
waited until the very last minute on the due date to complete work
on it when the computer failed. Notwithstanding the computer
failure, counsel offers no explanation as to why a handwritten
skeletal petition could not have been filed on the due date, to be
supplemented later. The State denies agreeing to any extension --
and indeed, it had no authority to extend the statutory deadline.
Johnson’s counsel must have known that they could not rely on such
an unauthorized extension and obviously cannot now argue that they
were “misled” into believing that the statutory deadline had been
extended. Even assuming such an agreement with the State’s
attorney existed, there is no documentation for it, and certainly
nothing to substantiate counsel’s assumption that the deadline was
“flexible”. Finally, counsel still did not file the petition on
the allegedly agreed-upon deadline; instead, they say that they
attempted to file it after hours the next day, even though it was
officially stamped on January 3, some seven days after it was due.
These circumstances are not “rare and extraordinary” and cannot
justify equitable tolling under our precedent. Moreover, Johnson
cannot possibly satisfy the Supreme Court standard set out in
Lawrence, which makes clear that even if equitable tolling of
21
AEDPA’s statute of limitations might be available, the petitioner
must pursue his rights diligently (here Johnson had nine months to
file his petition and waited until the last minute) and second,
some extraordinary circumstance must have stood in his way of a
timely filing (here, nothing stood in his way of a timely skeletal
filing).
C.
Johnson contends, for the first time in his COA application
filed in this court, that his petition was timely filed because the
90-day period for filing a petition for a writ of certiorari from
the Texas Court of Criminal Appeals’ denial of state habeas relief
should be included in the time during which his state habeas
application was “pending”. Because Johnson did not raise this
statutory tolling argument in the district court, or request a COA
from the district court for this claim, this court has no authority
to grant a COA for the claim. See Goodwin v. Johnson, 224 F.3d
450, 459 & n.6 (5th Cir. 2000).
Furthermore, this contention is foreclosed by Supreme Court
and Fifth Circuit precedent. See Lawrence v. Florida, 127 S.Ct. at
1083 (holding that the one-year limitations period is not tolled
during the pendency of a petition for certiorari from denial of
state habeas relief); Ott v. Johnson, 192 F.3d 510, 513 (5th Cir.
1999) (limitations period is not tolled “from the time of denial of
state habeas relief by the state high court until the time in which
22
a petitioner could have petitioned the United States Supreme Court
for certiorari”).
D.
Because we conclude that the district court’s procedural
ruling is not debatable, it is not necessary for us to address
whether reasonable jurists would find debatable the district
court’s alternative ruling that the state courts did not
unreasonably apply clearly established federal law in denying
relief on Johnson’s ineffective assistance claim.*
*
We do note, however, that Johnson did not present to the
state courts any mitigating evidence that allegedly could have been
discovered in an adequate investigation. Johnson explains that
because his claim is a “categorical” one, it is not dependent on
proof that particular testimony or evidence was available. But see
Miller v. Dretke, 420 F.3d 356, 361 (5th Cir. 2005) (“To establish
that an attorney was ineffective for failure to investigate, a
petitioner must allege with specificity what the investigation
would have revealed and how it would have changed the outcome of
the trial.”). In federal court, he submitted an affidavit of a
mitigation specialist who stated that she had spoken with friends
and family members who would have been willing to testify had they
been asked, and that she had discovered evidence concerning
Johnson’s extensive emotional, physical, and sexual abuse suffered
in a number of state-sponsored foster homes; limited success in
school due to a low IQ, behavioral problems and learning
disabilities; difficulty adjusting to inner-city life in Austin
after having lived in a smaller community; an
“untreated/undiagnosed mental illness” that affected his ability to
function normally at home and at work; and an extensive family
history of, and genetic predisposition to, substance abuse. None
of the individuals referred to in the mitigation specialist’s
affidavit presented affidavits in either the state or federal
habeas proceedings. See Dowthitt v. Johnson, 230 F.3d 733, 746
(5th Cir. 2000) (a claim is not exhausted when the petitioner
offers in federal court material additional factual allegations and
evidentiary support that were not presented in state court).
The district court held that, even if considered, the
mitigation specialist’s affidavit would provide no grounds for
23
IV.
For the foregoing reasons, Johnson’s application for a COA is
DENIED.
relief because, in the context of Johnson’s extensive history of
extreme and brutal violence, it is highly unlikely that evidence of
Johnson’s childhood abuse and privations in foster homes was so
compelling that there is a reasonable probability that at least one
juror could have reasonably determined that death was not an
appropriate sentence. As we have indicated, we do not address this
holding of the district court.
24