UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
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No. 94-60400
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EDDIE JAMES 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
__________________________________________________
(October 18, 1995)
Before JOLLY, WIENER, and EMILIO M. GARZA, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
I
Eddie James Johnson, a Texas death row inmate, appeals the
district court's denial of his petition for writ of habeas corpus.
Johnson was convicted of murdering David Magee, Virginia Cadena,
and Elizabeth Galvan. See TEX. PENAL CODE ANN. § 19.03(a)(6)(A).
After finding Johnson guilty, the jury returned affirmative
findings to the two Texas special sentencing issues used in death
penalty cases, see TEX. CODE CRIM. PROC. ANN. art. 37.071, and the
court imposed a sentence of death. The Texas Court of Criminal
Appeal affirmed Johnson's conviction and sentence, and later denied
rehearing. See Johnson v. State, 803 S.W.2d 272 (Tex. Crim. App.
1990). The United States Supreme Court denied certiorari. See
Johnson v. Texas, 501 U.S. 1259, 111 S. Ct. 2914, 115 L. Ed. 2d
1078 (1991).
Johnson sought postconviction relief in the state courts.
Pursuant to the trial court's recommendation, the Texas Court of
Criminal Appeals denied Johnson's state application for writ of
habeas corpus. Johnson then filed an application for writ of
habeas corpus in the United States District Court for the Southern
District of Texas. After an evidentiary hearing on Johnson's
ineffective assistance of counsel claim, the district court denied
habeas relief, but issued a certificate of probable cause to
appeal.
Johnson appeals the district court's denial of his writ of
habeas corpus. He contends that (1) he received ineffective
assistance of counsel because of his attorneys' failure to rebut
and effectively challenge the state's forensic evidence; (2) the
trial court's failure to instruct the jury concerning the parole
implications of a life sentence violated his Fourteenth and Eighth
Amendment rights; and (3) he was denied a fair trial because of a
juror's exposure to prejudicial information.
We affirm.
II
Johnson argues that the district court erred in denying his
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ineffective assistance of counsel claim.1 The district court found
that although Johnson's attorneys' performance was deficient,
Johnson was not prejudiced as a result. Johnson contends that the
district court erred in its prejudice analysis by (1) focusing
exclusively on the effect of his attorneys' performance on the
outcome of the case, and (2) using a sufficiency of the evidence
standard. Johnson contends that an application of the correct
prejudice analysis would have resulted in a finding that he was
prejudiced by his counsel's failure to develop or present forensic
testimony. We review ineffective assistance of counsel claims
under the standard set forth in Strickland v. Washington, 466 U.S.
668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Ineffective
assistance of counsel is a mixed question of law and fact which we
review de novo. Id. at 698, 104 S. Ct. at 2070; Baker v. Metcalfe,
633 F.2d 1198, 1201 (5th Cir.), cert. denied, 451 U.S. 974, 101 S.
Ct. 2055, 68 L. Ed. 2d 354 (1981).
To obtain reversal of a conviction or death sentence based on
ineffective assistance of counsel, a convicted defendant must show
that (1) his counsel's performance was deficient, and (2) the
deficient performance prejudiced his defense. Strickland, 466 U.S.
at 687, 104 S. Ct. at 2064. Because the defendant must prove both
1
Johnson relies on the following facts in the record. Before
Johnson's trial began, his attorneys became aware that the prosecution intended
to prove its case partly through forensic evidence. The trial court approved
funds for the trial attorneys to hire forensic experts to assist the defense with
fingerprinting, blood, serology, and ballistic evidence. However Johnson's
attorneys neither developed any forensic evidence nor prepared to rebut the
prosecution's expert testimony. As anticipated, the state presented serological
and forensic evidence at Johnson's trial that implicated him in the murders.
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deficiency and prejudice, a defendant's failure to prove either
will be fatal to his claim. Because we find that Johnson was not
prejudiced by the errors of his trial counsel, his ineffective
assistance claim fails, and we need not address deficiency.2
To establish prejudice, a defendant must show that there is a
reasonable probability that, but for his attorney's deficient
performance, the factfinder would have had a reasonable doubt about
his guilt. Id. at 695, 104 S. Ct. at 2068-69. "A reasonable
probability is a probability sufficient to undermine confidence in
the outcome." Id. at 694, 104 S. Ct. at 2068. The right to
effective assistance of counsel is intended to ensure that the
defendant receives a fair trial. Id. at 687, 104 S. Ct. at 2064.
Therefore to establish prejudice, the defendant must show that
counsel's errors were so severe as to deprive him of a fair trial
with a reliable result. Id. In determining whether there was
prejudice, we must look at the totality of the evidence before the
jury.3
Johnson correctly alleges that the court's focus on the
outcome of the case and the sufficiency of the "untainted" evidence
implicating Johnson does not comport with the Strickland prejudice
2
By not discussing the Strickland deficiency prong, we do not imply
that we necessarily agree with the district court’s determination on this issue.
3
"Some errors will have had a pervasive effect on the inferences
to be drawn from the evidence, altering the entire evidentiary picture, and some
will have had an isolated, trivial effect." Id. at 695-96, 104 S. Ct. at 2069.
A verdict that is only weakly supported by the record is more likely to have been
affected by an attorney's errors than one with strong record support. Id. at
696, 104 S. Ct. 2069.
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standard.4 The Supreme Court has stated that when analyzing
prejudice in an ineffective assistance of counsel case, a court
should not focus solely on outcome determination, without
considering whether the result of the proceeding was unreliable or
fundamentally unfair. Lockhart v. Fretwell, ___ U.S. ___, 113 S.
Ct. 838, 842-43, 122 L. Ed. 2d 180 (1993). The touchstone of the
prejudice inquiry is the fairness of the trial and the reliability
of the jury or judge's verdict in light of any errors made by
counsel, not solely the outcome of the case. Strickland, 466 U.S.
at 696, 104 S. Ct. at 2069.
Likewise the sufficiency of the "untainted" evidence should
not be the focus of the prejudice inquiry. The materiality
standard under Brady v. Maryland,5 is identical to the prejudice
4
In deciding that Johnson was not prejudiced by his counsels'
performance, the district court held that even though an effective cross-
examination of the state's expert witnesses has the potential for discrediting
the entire case, to find prejudice, it would have to find that a reasonable jury
could not have reached the same verdict if counsel had performed effectively.
The court concluded that because of the amount of other circumstantial evidence
linking Johnson to the murders, Johnson was not prejudiced by trial counsels'
errors.
5
373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). Brady
held that the prosecution's suppression of evidence favorable to an accused
violates due process where the evidence is material either to guilt or
punishment. Brady, 373 U.S. at 87, 83 S. Ct. 1196-97. In interpreting the
materiality standard, the Supreme Court has adopted the Strickland formulation
of prejudice and cites both ineffective assistance of counsel and Brady cases
when defining materiality. See United States v. Bagley, 473 U.S. 667, 682, 105
S Ct. 3375, 3383-84, 87 L. Ed. 2d 481 (1985) (opinion of Blackmun, J.) (adopting
the Strickland formula); Id. at 685, 105 S. Ct. at 3385 (White, J., concurring
in part and concurring in judgment) (also adopting Strickland standard); Kyles
v. Whitney, ___ U.S. ___,
115 S. Ct. 1555, 1566, 131 L. Ed. 2d 490 (1995)(citing ineffective assistance of
counsel and Brady cases alternatively). The Brady materiality standard asks
"[w]hether it is reasonably probable that a different result might have been
obtained had the evidence been disclosed." Lindsey v. King, 769 F.2d 1034, 1043
(5th Cir. 1985).
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standard under Strickland. In Kyles v. Whitley,6 the Supreme Court
emphasized that materiality under Brady has never been a
sufficiency of the evidence test. Instead, the defendant must show
that "the favorable evidence could reasonably be taken to put the
whole case in such a different light as to undermine confidence in
the verdict." Id. at ___, 115 S. Ct. at 1566.
Despite the analytical errors of the district court, we find
that a correct application of the prejudice standard to Johnson's
case still results in a finding that Johnson was not prejudiced by
his attorneys' conduct. Johnson's attorneys failed to consult with
or obtain the testimony of experts in forensic science to present
favorable evidence to the jury and to assist defense counsel in
trial preparation. At the habeas corpus evidentiary hearing
Johnson presented experts challenging much of the state's expert
testimony. The district court summarized the state's expert
testimony and Johnson's habeas experts' testimony as follows:
(1) At trial, the state's hair expert testified the hair
fragments on the jeans found in the dumpster had the same
"unique" reddish tint as defendant's head hair. Several
experts who testified at the evidentiary hearing
testified those fragments had no such tint, nor were they
suitable for comparison to defendant's head hair.
(2) At trial, counsel's questioning of the state's blood
expert focused on identifying the source of the unknown
blood stains by matching them to the known blood samples
with which they might have been consistent. Johnson's
habeas experts testified the focus should have been on
how frequently the combinations of the genetic markers
identified in the unknown stains occur in the population
at large, thus making it less likely that they came from
the particular source with which they were consistent.
6
___ U.S. at ___, 115 S. Ct. at 1566.
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(3) At trial, the state's expert testified that the coke
can found in the car bore defendant's bloody palm print.
Johnson's habeas experts testifed that faulty
fingerprinting procedures suggested strongly that
Johnson's [palm print] on the can was not in blood,
thereby making available the inference that the print was
innocently placed on the can before the bloody murders.
Assuming, arguendo, that Johnson received legally deficient
representation,7 we must review the other evidence presented in the
case linking Johnson to the crime to determine what effect
Johnson's experts could have had on the entire evidentiary picture.
The evidence showed that Johnson despised one of the victims,
illustrating motive. Johnson's fingerprints on a telephone and a
beer can in the victims' apartment placed him at the scene of the
crime. A telephone cord was used to bind one of the victims, and
the phone with Johnson's prints did not have a cord. Johnson,
wearing "fairly new jeans," took a cab to the vicinity of the
victims' apartment on the night of the murders. Johnson's palm
print was on the coke can in one of the victim's bloody car.
A witness also gave uncontroverted testimony that he sold
Johnson a .25 caliber gun that experts testified was used to kill
one of the victims. A unique holster belonging to a .38 caliber
gun, the caliber used to kill two of the other victims, was found
under a vacant trailer next to Johnson's. This holster, with a .38
caliber gun, was stolen from a car in a parking lot accessible to
the employees of a plant where Johnson worked. Police found shells
and gun cleaning kits in Johnson's trailer which were consistent
7
See supra note 2.
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with both .25 and .38 caliber guns.
Other evidence indicated that the car where police found the
bodies was extremely bloody. Police found wet boots in Johnson's
trailer with human blood on them. They found a wet pair of new
jeans in a dumpster in his trailer park which were the size and
brand that Johnson's wife had recently bought for him. The blood
splatter pattern on the jeans matched the pattern on Johnson's
boots. The jeans also had fragments of African-American hair and
a Caucasian hair. Johnson is African-American, and the Caucasian
hair was consistent with that of one of the victims. Finally,
police found a wet pair of underwear with the jeans which were the
same brand and size as those found in Johnson's trailer.
Even if Johnson's habeas experts had testified, there would
still be no explanation for Johnson's prints being on anything in
Cadena's car, for the defense presented no evidence that Johnson
and Cadena were friends. In addition, although Johnson's experts
would have challenged the probability that certain blood stains
could be linked to the victims or Johnson, they could not have
explained the blood on Johnson's boots. Nor was there any innocent
explanation for the blood splatter on the boots being consistent
with the blood splatter on the wet jeans found at a dumpster near
Johnson's trailer.
Although Johnson's habeas experts may have been able to weaken
some of the state's evidence, there is not a reasonable possibility
that their testimony would have given jurors a reasonable doubt
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respecting guilt. Trial counsel's failure to obtain experts did
not have a pervasive effect on the inferences to be drawn from the
evidence presented in the case. To the contrary, the jury's
decision was strongly supported by the evidence which gives us
confidence that Johnson received a fair trial and that the jury
returned a reliable verdict; therefore, we find there was no
prejudice.
III
Johnson contends that his Eighth and Fourteenth Amendment
rights were violated because the trial court refused to instruct
the jury on the parole implications of a life sentence.8 Johnson
argues that because future dangerousness was the central issue in
the Texas capital sentencing procedure at the time of his
sentencing, the court should have instructed the jury that Johnson
would have to serve at least twenty years of a life sentence before
he would be eligible for parole. Johnson argues that Simmons v.
South Carolina9 mandates this result. The district court rejected
this claim, stating that if it were to grant the relief Johnson
8
During the penalty phase, the court refused Johnson's requested
instruction that if Johnson received a life sentence he would not be eligible for
parole for twenty years. In 1988 in Texas, a person convicted of capital murder
who received a life sentence was ineligible for parole until he had served twenty
years in prison. See TEX. CODE CRIM. PROC. ANN. art. 42.18 § 8(b)(12).
9
___ U.S. ___, 114 S. Ct. 2187, 129 L. Ed. 2d 133 (1994).
Simmons held that "where the defendant's future dangerousness is at issue, and
state law prohibits the defendant's release on parole, due process requires that
the sentencing jury be informed that the defendant is parole ineligible." Id.
at ___, 114 S. Ct. at 2190. The Court emphasized that in the majority of cases
the decision of whether to inform the jury about parole should be left up to the
states; however, when the alternative sentence to death is life without parole,
the defendant's legal ineligibility for parole is necessarily relevant to her
future dangerousness. Id. at ___, 114 S. Ct. at 2196.
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requested, it would require the announcement of a new rule in
violation of Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060, 103 L.
Ed. 2d 334 (1989).10
Johnson correctly acknowledges that our opinion in Alldridge
v. Scott, 41 F.3d 213 (5th Cir. 1994), controls this issue. In
Alldridge we held that Simmons requires a trial court to instruct
a sentencing jury about the parole implications of a life sentence
only where future dangerousness is at issue, and where the
defendant is legally ineligible for parole because the state offers
a life without parole sentencing alternative to the death penalty.
Id. at 222. Since Johnson was not legally ineligible for parole,
Alldridge clearly disposes of his due process argument.11
Johnson also claims that the trial court's refusal of his
requested parole instruction violated his Eighth Amendment rights.
Justice Blackmun's plurality opinion in Simmons declined to express
10
The Court in Teague held that absent two exceptions which are
not applicable here a new constitutional rule of criminal procedure could not be
applied retroactively to cases on collateral review. Teague, 489 U.S. at 310,
109 S. Ct. at 1075.
11
Both the district court and the court in Alldridge correctly
acknowledged that an application of Simmons to a pre-Simmons case, such as
Johnson's, would violate the nonretroactivity limitation imposed by the Supreme
Court in Teague. See Alldridge, 41 F.3d at 222 n.11.
Johnson argues that Simmons did not announce a new rule; thus, Teague
should not apply. Teague defined a new rule as one that "breaks new ground or
imposes a new obligation on the States or the Federal Government," and is "not
dictated by precedent existing at the time the defendant's conviction became
final." Teague, 489 U.S. at 301, 108 S. Ct. at 1070 (emphasis in original).
Simmons did announce a new rule because it held that in some situations the
states are no longer free to decide whether an instruction on parole should be
given. This is inconsistent with the Court's earlier ruling in California v.
Ramos, 463 U.S. 992, 103 S. Ct. 3446, 77 L. Ed. 2d 1171 (1983). In Ramos, the
Court held inter alia, that whether or not an instruction on post-sentencing
contingencies was appropriate remained properly in the hands of the states.
Ramos, 463 U.S. at 1013-14, 103 S. Ct. at 3460. Therefore, even if Simmons
applied to Johnson's case, it would still be barred by Teague.
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an opinion as to whether the decision was compelled by the Eighth
Amendment; therefore, Simmons does not rest on Eighth Amendment
grounds as Johnson argues. Simmons, ___ U.S. at ___, 114 S. Ct. at
2193 n.4. We have consistently held, however, that neither the due
process clause nor the Eighth Amendment compels instructions on
parole in Texas. Andrade v. McCotter, 805 F.2d 1190, 1192 (5th
Cir. 1986); see Knox v. Collins, 928 F.2d 657, 660 (5th Cir. 1991),
cert. denied, ___ U.S. ___, 114 S. Ct. 732, 126 L. Ed. 2d 696
(1994). As such Johnson's Eighth Amendment argument also fails on
the merits.12
IV
Johnson finally contends that the district court erred in
refusing to grant him an evidentiary hearing on whether he was
denied a fair trial because of a juror's exposure to newspaper and
television reports about the trial.13 A petitioner must establish
prejudice to prevail on a claim that he was denied a fair trial as
the result of a juror's exposure to prejudicial information.
Prejudice requires proof that the juror is biased against the
defendant. Callins v. Collins, 998 F.2d 269, 277 (5th Cir. 1993),
cert. denied, ___ U.S. ___, 114 S. Ct. 1127, 127 L. Ed. 2d 435
(1994) (quoting Murphy v. Florida, 421 U.S. 794, 800, 95 S. Ct.
12
Because Johnson bases his Eighth Amendment argument on Simmons,
his argument would also fail under the nonretroactivity principle of Teague.
13
Following Johnson's trial, one of the jurors admitted reading
and watching newspaper and television reports of Johnson's trial in violation of
the trial judge's orders. This juror saw Johnson in shackles during one of the
television reports; however, he had already seen Johnson in shackles inside the
courtroom.
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2031, 2036, 44 L. Ed. 2d 589 (1975)). News stories are typically
considered prejudicial, and therefore may warrant a new trial when
jurors are exposed to them, if they contain information that was
not presented to the jury or was deemed inadmissible. United
States v. Hyde, 448 F.2d 815, 849, (5th Cir. 1971), cert. denied,
404 U.S. 1058, 92 S. Ct. 736, 30 L. Ed. 2d 745 (1972).
A federal court must hold an evidentiary hearing on a
constitutional claim only when the state court has not provided a
hearing, the petitioner alleges specific facts which, if proved,
would entitle him to relief, and there is a genuine factual dispute
in the record. Lincecum v. Collins, 958 F.2d 1271, 1278 (5th
Cir.), cert. denied, ___ U.S. ___, 113 S. Ct. 417, 121 L. Ed. 2d
340 (1992) (citing Johnson v. Estelle, 704 F.2d 232, 239 (5th Cir.
1983), cert. denied, 465 U.S. 1009, 104 S. Ct. 1006, 79 L. Ed. 2d
237 (1984)). "[B]old assertions on a critical issue in a habeas
petition, unsupported and unsupportable by anything else contained
in the record, are insufficient to warrant an evidentiary hearing."
Byrne v. Butler, 845 F.2d 501, 513-14 (5th Cir.), cert denied, 487
U.S. 1242, 108 S. Ct. 2918, 101 L. Ed. 2d 949 (1988). The
petitioner must set forth specific allegations of fact, not mere
conclusory allegations. Ward v. Whitley, 21 F.3d 1355 (5th Cir.
1994), cert. denied, ___ U.S. ___, 115 S. Ct. 1257, 131 L. Ed. 2d
137 (1995). Therefore, to warrant an evidentiary hearing, Johnson
would have to set forth specific allegations of facts to establish
that he was prejudiced by a juror's exposure to prejudicial news
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reports.
In his attempt to get an evidentiary hearing on prejudice,
Johnson submitted an affidavit to the district court. The
affidavit does not allege facts that, if proven, would demonstrate
prejudice. The affidavit simply states that a juror was exposed to
newspaper accounts of evidence presented in court and pictures of
Johnson in shackles. However, Johnson acknowledges that the juror
had already seen him in shackles when he was being brought into the
courtroom before he saw him on television. The affidavit does not
allege that the juror was exposed to any prejudicial information
such as inadmissible evidence.14
Johnson argues that the fact that the juror sought out this
information demonstrates that the juror was biased against him.
While this may demonstrate curiosity, this fact alone is hardly
enough to demonstrate prejudice.
Johnson has failed to present specific facts that if proven
would demonstrate that he was prejudiced by the juror's exposure to
14
Johnson's interpretation of United States v. Luffred, 911 F.2d
1011 (5th Cir. 1990) is strained at best. Johnson claims the case stands for the
proposition that juror exposure to information that the juror is already aware
of from the courtroom is not necessarily harmless. However even a cursory
reading of the case illuminates the differences between that case and Johnson's.
In Luffred a deputy marshal "imprudently" gave the jury a government chart which
had been excluded from evidence because of its misleading portrayal of the
defendant's involvement in the crimes. Thirty minutes after the jury had been
using the chart in their deliberations, the court instructed the jury to
disregard the information in the chart, "but then added that the chart had been
'supported by the evidence . . . to a great extent or perhaps completely.'" Id.
at 1014. We granted the defendant in Luffred a new trial because the court's
instruction exacerbated the jury's exposure to the misleading information. Id.
at 1015.
In contrast to the jurors in Luffred, Williams did not learn new or
misleading information about Johnson's case from his exposure to news reports.
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this information; therefore, Johnson is not entitled to an
evidentiary hearing.
IV
For the foregoing reasons, we AFFIRM.
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