Johnson v. Scott

UNITED STATES COURT OF APPEALS
for the Fifth Circuit

_____________________________________

No. 95-20117
_____________________________________

CARL JOHNSON,

Petitioner-Appellant,

VERSUS

WAYNE SCOTT, DIRECTOR
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,

Respondent-Appellee.

______________________________________________________

Appeal from the United States District Court
for the Southern District of Texas
(93 CV 4108)
______________________________________________________
September 12, 1995

Before DAVIS, JONES, and DUHÉ, Circuit Judges.

DUHÉ, Circuit Judge:1

Carl Johnson was found guilty of capital murder and is

sentenced to be executed on September 19, 1995. Adopting the

Memorandum and Recommendation of the magistrate judge, the

district court denied Johnson's petition for habeas relief and

certificate of probable cause (CPC) and granted the Respondent's

motion for summary judgment. No express request for CPC having

been filed in this Court, the notice of appeal is deemed to

1
Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
constitute a request for CPC in accordance with Federal Rules of

Appellate Procedure 22(b).

Unless CPC is granted, this Court lacks jurisdiction to hear

this appeal.2 Black v. Collins, 962 F.2d 394, 398 (5th Cir.),

cert. denied, 504 U.S. 992 (1992). The standard for granting CPC

is whether Johnson has made a substantial showing of the denial

of a federal right. Barefoot v. Estelle, 463 U.S. 880, 893

(1983); Rault v. Butler, 826 F.2d 299, 302 (5th Cir.), cert.

denied, 483 U.S. 1042 (1987). That is, he must "demonstrate that

the issues are debatable among jurists of reason; that a court

could resolve the issues [in a different manner]; or that the

questions are 'adequate to deserve encouragement to proceed

further.'" Barefoot, 463 U.S. at 893 n.4 (alteration in

original) (quoting Gorden v. Willis, 516 F. Supp. 911, 913 (N.D.

Ga. 1980)); accord Black v. Collins, 962 F.2d at 399.

2
Petitioner questions whether the notice of appeal, filed
February 22, 1995, is timely in view of the various filings
following the district court's order of September 22, 1994
granting the state's motion for summary judgment. That order
preserved the stay of execution in effect contingent on Johnson's
perfecting an appeal. The district court's final judgment
provided that even if appeal were taken, a stay would remain in
effect until vacated by this Court or the Supreme Court.
Respondent then filed a post-judgment motion pursuant to
Federal Rule of Civil Procedure Rule 59(e) requesting that the
Court lift the stay of execution. A timely Rule 59 motion has
the effect of extending the time to appeal, so that it begins to
run upon disposition of the post-judgment motion. See Fed. R.
App. P. 4(a)(4). On January 25, 1995, the district court entered
an order which vacated the stay. This order has the effect of
granting Respondent's Rule 59(e) motion. The February 22 notice
of appeal was within 30 days of entry of the January 25 order
disposing of the motion. Accordingly, the notice of appeal is
timely. See Fed. R. App. P. 4(a).

2
 We conclude that Johnson does not meet the standard with

regard to any of the issues advanced.

I.

Johnson first claims that the sentencing jury was precluded

from giving effect to mitigating evidence in violation of Penry v.

Lynaugh.3 Johnson argues that the trial court's improper exclusion

of the testimony of the Reverend Shelby Brown precluded the jury

from considering all relevant mitigating evidence.

On direct appeal, the Texas Court of Criminal Appeals found

that Johnson's trial counsel did not object to the exclusion of

Brown's testimony and did not attempt to reoffer it during the

sentencing hearing so that the jury could consider its alleged

mitigating value. See Johnson v. State, 629 S.W.2d 731, 735 (Tex.

Crim. App. 1981). Without a timely objection, habeas relief is

unavailable absent a showing of cause and prejudice. Engle v.

Isaac, 456 U.S. 107, 129 (1982). As the magistrate judge

concluded, Johnson fails to show cause and prejudice to avoid the

bar of procedural default.4

Johnson contends that the district court improperly applied

the procedural bar and argues that there is no independent and

3
492 U.S. 302 (1989).
4
Johnson v. Scott, No. H-93-4108, Mem. & Recommendation of
magistrate judge at 13 (S.D. Tex Mar. 2, 1994) [hereinafter
Recommendation]; see also Johnson v. Scott, No. H-93-4108, slip
op. at 9 (S.D. Tex. Sept. 22, 1994) [hereinafter Order] (agreeing
with magistrate judge's analysis). In view of the thorough
analyses of the arguments by both the district court in the Order
and by the magistrate judge in the Recommendation, we have
provided references to these documents in order to avoid
repetition and facilitate review.

3
adequate state basis for denying relief by pointing to

inconsistencies in the Texas court's application of rules governing

the incompetency of witnesses. The procedural default occurs by

virtue of Texas' contemporaneous objection rule, not the witness

competency rules. Johnson does not dispute the regularity of Texas

courts' application of the contemporaneous objection rule.

We agree with the magistrate judge, alternatively, that the

testimony was properly excluded because the witness's opinion was

based on personal knowledge, yet was presented solely to establish

Johnson's reputation in the community. See Recommendation at 13-

14. Testimony regarding a defendant's reputation in the community

cannot be relevant unless the witness is familiar with the

defendant's reputation in the community. Johnson v. State, 629

S.W.2d at 735; Patrick v. State, 243 S.W.2d 707, 708 (Tex. Crim.

App. 1951).

Finally, we agree with Respondent that, assuming a

constitutional violation, Johnson is not entitled to habeas relief

unless he was prejudiced by those errors. See Brecht v.

Abrahamson, 113 S. Ct. 1710, 1722 (1993). Johnson cannot show

prejudice from the exclusion of Brown's testimony because, in its

most favorable light, the testimony amounts to "good character"

evidence from a witness who had very limited contact with Johnson.

Johnson has not established that this evidence could overcome the

prosecution's evidence of Johnson's future dangerousness. This

claim cannot support the granting of CPC.

4
 II.

In an additional Penry argument, Johnson contends that the

jury was precluded from giving mitigating effect to evidence by the

response of the trial court to a jury note. During deliberations

at the punishment phase, the jury asked, "Can we consider

rehabilitation in determining the answer to the second charge?"

The second charge relates to future dangerousness and asks "whether

there is a probability that the defendant would commit criminal

acts of violence that would constitute a continuing threat to

society." Texas Code Crim. Proc. Ann. art. 37.071(b)(2) (West

1981) (amended 1991). The trial court responded, "I can only refer

you to the evidence you heard and the charge of the court." We

agree with the district court and Respondent that Johnson's failure

to object contemporaneously to the trial court's response bars

federal habeas review of this claim absent a showing of cause and

prejudice. Order at 16; Recommendation at 22; see Smith v. Murray,

477 U.S. 527, 533 (1986).5

5
Johnson's additional argument under Simmons v. South Carolina,
114 S. Ct. 2187 (1994), is unavailing. In that case, the jury
asked the judge, "Does the imposition of a life sentence carry
with it the possibility of parole?" Id. at 2192. The judge
responded by instructing the jury to ignore the possibility of
parole and to interpret the term "life imprisonment" in its plain
and ordinary meaning. Id. The Simmons instruction was confusing
in that it "actually suggested that parole was available but that
the jury, for some unstated reason, should be blind to this
fact." 114 S. Ct. at 2197. In this case, there is no suggestion
that the trial court's response misled the jury or limited the
jury's consideration of rehabilitation. The trial court
refocused the jury's attention on the instructions given and on
the wording of the second special issue itself, to which evidence
of capacity for rehabilitation is obviously relevant. Thus,
Simmons is distinguishable.

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 III.

In another argument under Penry, Johnson contends that the

structure of the Texas death penalty scheme chilled his attorney's

investigation and presentation of mitigating evidence because of

the potential aggravating effect of much of the evidence. With his

petition for habeas corpus, Johnson submitted affidavits regarding

several potentially mitigating circumstances such as Johnson's

troubled family background and drug addiction. Johnson's chilling

claim does not provide a basis for relief under the federal

constitution. The district court properly rejected this claim as

foreclosed by May v. Collins, 904 F.2d 228, 232 (5th Cir. 1990)

("[A] defendant's deliberate failure 'to introduce mitigating

evidence as a tactical decision . . . does not come within the

requirements announced in Penry.'") (quoting DeLuna v. Lynaugh, 890

F.2d 720, 722 (5th Cir. 1989)), cert. denied, 498 U.S. 1055 (1991).

See Order at 14-15; see also Recommendation at 19-20.

IV.

Johnson next claims that there is insufficient evidence of

future dangerousness to support the jury's affirmative answer to

the second charge. Johnson complains that he is to be executed for

a crime indistinguishable from crimes committed by others who have

had their death sentences overturned.

Johnson is not entitled to a comparative proportionality

review of his death sentence. Pulley v. Harris, 465 U.S. 37, 45-51

(1984). Assuming, without deciding, that appellate review of the

sufficiency of the evidence supporting the special issues is

6
constitutionally required, we find significant evidence

demonstrating the probability that Johnson would commit criminal

acts of violence that would constitute a continuing threat to

society. We agree with the magistrate judge in this regard. See

Recommendation at 27-28; see also Order at 18-20. This claim

cannot support the grant of CPC.

V.

Petitioner argues that prospective jurors were improperly

excluded on the basis of their views concerning the death penalty

in violation of Witherspoon v. Illinois6 and Batson v. Kentucky.7

As the district court noted, Johnson did not object to the State's

challenges for cause with respect to some of the venire members.

Without a timely objection, habeas relief is unavailable absent a

showing of cause and prejudice.8 See generally Order at 21-22;

Recommendation at 32.

Johnson's related argument that the prosecutor improperly used

peremptory strikes to excuse venire members based on their views of

the death penalty is also procedurally barred and meritless, see

generally Recommendation at 33-34, because of Johnson's failure to

object to the state's use of peremptory strikes. The claim is

meritless because Batson does not apply in the context of a juror's

attitude towards the death penalty. See Brown v. North Carolina,

6
391 U.S. 510 (1968).
7
476 U.S. 79 (1986).
8
Additionally, the magistrate judge examined the circumstances
surrounding the exclusion of each juror and found that the
prospective jurors were excludable. See Recommendation at 32-33.

7
479 U.S. 940, 941 (1986) ("Batson does not touch, indeed, it

clearly reaffirms the ordinary rule that a prosecutor may exercise

his peremptory strikes for any reason at all.") (O'Connor, J.,

concurring in denial of petition for certiorari) (citation

omitted). "Permitting prosecutors to take into account concerns

expressed about capital punishment by prospective jurors in

exercising peremptory challenges simply does not implicate the

concerns expressed in Witherspoon." Id.; see also Gray v.

Mississippi, 481 U.S. 648, 667-68 (1987) (noting that such use of

peremptory challenges is common).

VI.

Johnson next contends that his death sentence is based on

erroneous, unreliable, and inflammatory evidence of an

unadjudicated prior offense. The state introduced evidence of an

unadjudicated robbery committed immediately prior to his arrest.

This argument is procedurally barred for the failure of Johnson to

object to the admission of the evidence.

Petitioner's complaint that the trial court did not instruct

the jury with respect to the standard of proof regarding this

evidence is also procedurally barred for his failure to request

such an instruction. Johnson having failed to show cause or

prejudice for failure to raise this claim in a proper manner, the

court correctly barred federal habeas review. We agree with the

district court's analysis. See generally Order at 20;

8
Recommendation at 30. The claims cannot support the granting of

CPC.9

VII.

Johnson finally contends that he received ineffective

assistance of counsel at trial and on direct appeal. A defendant

must show that counsel's performance was deficient and that the

deficient performance prejudiced the defense. Strickland v.

Washington, 466 U.S. 668, 688-91 (1984). Johnson complains of his

counsel's failure to object to the trial court's exclusion of

Brown's testimony and to the trial court's response to the jury

note, and to the failure of his counsel to investigate and present

mitigating evidence. The district court concluded that Johnson

failed to show how failure to object to the evidentiary ruling

constituted deficient performance because Brown was not competent

to testify regarding Johnson's reputation. Counsel is not

deficient for failing to take action or make requests that are

unsupported by the law.10 See McCoy v. Lynaugh, 874 F.2d 954, 963

9
Additionally, we agree with the trial court that the claims
are meritless. Order at 20-21; Recommendation at 28-29. Johnson
has not shown that the Constitution bars the admission of
unadjudicated offense evidence based on its alleged
unreliability. The presence of Johnson's fingerprints on the
eyeglasses of the robbery victim belies his argument that the
evidence was not factually reliable. Johnson has not shown that
the admission of this evidence "had substantial and injurious
effect or influence in determining the jury's verdict." Brecht
v. Abrahamson, 113 S. Ct. at 1722.
10
Johnson's claim concerning his counsel's failure to object
also fails for lack of prejudice. Brown's testimony would not
have swayed the jury on the issue of Johnson's future
dangerousness. See supra Part I.

9
(5th Cir. 1989). Similarly, with regard to the response to the

jury note, counsel was not deficient in failing to object, because

the judge's answer was neutral. Id. Finally, as to the mitigating

evidence, we agree with the district court that this claim lacks

merit because of the evidence that Petitioner failed to cooperate,

obstructing his attorney's ability to investigate and develop

mitigating evidence. See Order at 24; Recommendation at 19-20, 44-

46. Johnson has failed to show that his attorney's performance

during trial was deficient or that he was prejudiced as required

under Strickland.

In accordance with the foregoing, we deny Johnson's

application for CPC and dismiss the appeal.

CPC DENIED, appeal DISMISSED.

10