Johnson v. Cockrell

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _______________ m 01-51199 _______________ KIA LEVOY JOHNSON, Petitioner-Appellant, VERSUS JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION, Respondent-Appellee. _________________________ Appeal from the United States District Court for the Western District of Texas _________________________ July 31, 2002 Before JONES, SMITH, and behind the counter. The police were able to EMILIO M. GARZA, Circuit Judges. obtain a surveillance tape that showed the per- petrator and showed the victim trying to reach JERRY E. SMITH, Circuit Judge: for a telephone for forty-five minutes after he was shot. I. In 1995, Kia Johnson was convicted of the The next day, Ray Thompson, a long-time capital murder of William Rains and sentenced acquiantance of Johnson’s, called police when to death. He now seeks a certificate of appeal- he recognized Johnson as the person on the ability (“COA”) to challenge the death tape when it was shown on television. The sentence. We deny a COA. police went to Thompson’s home and showed him the full videotape, whereupon he again A security guard at a convenience store dis- identified Johnson. covered the body of William Rains, a clerk, A warrant was issued for Johnson’s arrest; 15, 2001) (considering and rejecting the he soon was located in the custody of police, ineffective assistance claim now under having been arrested on an unrelated charge. appeal).1 We must therefore consider A police officer identified Johnson as the man Johnson’s claim on the merits. in the tape because he was wearing the same distinctive clothing. Henry Wright, another of IV. Johnson’s acquiantances, also identified him as A. the man portrayed in the tape. To obtain a COA, Johnson must make a “substantial showing of the denial of a II. constitutional right.” 28 U.S.C. § 2253(c) During the penalty phase of the trial, (1994). On appeal, such a showing requires Johnson’s attorney called the victim’s father, proof that “reasonable jurists would find the Julian Rains, as a witness. Rains testified to district court’s assessment of the constitutional the admirable qualities of his deceased son and claims debatable or wrong.” Slack v. stated that “I want the guilty person punished, McDaniel, 529 U.S. 473, 484 (2000). whether it be Mr. Johnson or whomever it may be because I don’t think my son could rest un- Because Johnson’s ineffective assistance til his murderer is taken care of.” claim was previously considered and rejected by a state court, it is also governed by the Johnson’s conviction was upheld by the Anti-Terrorism and Effective Death Penalty Texas Court of Criminal Appeals in 1996. In Act of 1996 (“AEDPA”), under which a state 1997 and 1998, the Court of Criminal Appeals court decision will be overturned in a habeas rejected two habeas corpus petitions. In No- proceeding only if it is “contrary to, or vember 2001, Johnson’s habeas corpus involved an unreasonable application of, petition and request for COA were rejected in clearly established Federal law, as determined federal district court. by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1) (1994).2 Johnson’s petition to the district court cited a variety of grounds. He now appeals on only one of these: The claim that his attorney’s calling of the victim’s father as a witness at the punishment phase of the trial, and the 1 substance of his questioning of that witness, The state further contends that Johnson did not constituted ineffective assistance of counsel. argue to the district court that Julian Rains’s tes- timony constitutes grounds for an ineffective as- III. sistance claim because it allegedly encouraged the The state argues that Johnson’s ineffective jury to impose a sentence of death. Johnson, how- ever, did in fact make this argument in one of his assistance claim is barred because he failed to briefs to the district court. raise it in the district court. To the contrary, the record and district court opinion show un- 2 Johnson’s case is governed by AEDPA equivocally that the claim was in fact raised because his habeas petition was filed after April and considered. See Johnson v. Cockrell, No. 24, 1996. See Lindh v. Murphy, 521 U.S. 320, SA-98-CA-133-EP, at 43-48 (W.D. Tex. Nov. 324-26 (1997) (describing time-frame for application of AEDPA). 2 B. Court recently has emphasized that for Cronic To sustain a claim of inadequate assistance to apply, “the attorney’s failure must be of counsel, a defendant usually must meet the complete.” Bell v. Cone, 122 S. Ct. 1843, standards of Strickland v. Washington, 466 1851 (2002). “For purposes of distinguishing U.S. 668 (1984), which requires proof that between the rule of Strickland and that of (1) “counsel’s performance was deficient” and Cronic,” the Court held that a case does not (2) “the deficient performance prejudiced the come under Cronic merely because counsel defense” so gravely as to “deprive the failed to “oppose the prosecution . . . at defendant of a fair trial, a trial whose result is specific points” in the trial. Id. It is not reliable.” Id. at 687. “There are, however, enough for the defendant to show mere “shod- circumstances that are so likely to prejudice dy representation” or to prove the existence of the accused that the cost of litigating their “errors, omissions, or strategic blunders” by effect in a particular case is unjustified.” counsel. Jackson, 150 F.3d at 525. “[B]ad United States v. Cronic, 466 U.S. 648, 658 lawyering, regardless of how bad, does not (1984). In such cases, where the defendant is support the per se presumption of prejudice.” constructively denied assistance of counsel, Id. (citations omitted).4 prejudice is automatically assumed and need not be proven. Id. at 658-62. Johnson’s attorney undeniably rendered “meaningful assistance” to his client Johnson argues that his counsel’s throughout the guilt and penalty phases. Id. examination of Julian Rains was so egregious Counsel’s examination of Julian Rains an error that it falls within the narrow Cronic apparently was part of a strategy intended to exception to the usual requirements imposed elicit some statement indicating that the on ineffective assistance claims. This defendant should be spared the death penalty. contention is without merit. This is indicated, for example, by the fact that Johnson’s attorney asked Rains whether he “‘A constructive denial of counsel occurs was “a religious man,” which implies that . . . in only a very narrow spectrum of cases counsel may have been seeking to elicit a plea where the circumstances leading to counsel’s that Johnson be spared for religious reasons. ineffectiveness are so egregious that the Counsel cited Rains’s testimony in his closing defendant was in effect denied any meaningful argument asking that Johnson be spared the assistance at all.’” Jackson v. Johnson, 150 death penalty. Although this strategy may F.3d 520, 525 (5th Cir. 1998) (quoting Chil- have been mistaken, it at most constitutes a dress v. Johnson, 103 F.3d 1221, 1229 (5th Cir. 1997)) (emphasis added).3 The Supreme 3 (...continued) or in any way exercise judgment on behalf of the 3 Cf. Burdine v. Johnson, 262 F.3d 336, 349 client”), cert. denied, 122 S. Ct. 2347 (2002). (5th Cir. 2001) (en banc) (upholding a Cronic Johnson’s counsel “exercise[d] judgment” on be- claim in a case where the defendant’s lawyer was half of his client throughout, and he was certainly asleep during parts of the trial because “[u]ncon- far superior to having “no counsel at all.” Id. scious counsel equates to no counsel at all. Un- 4 conscious counsel does not analyze, object, listen See also Gochicoa v. Johnson, 238 F.3d 278, (continued...) 284-85 (5th Cir. 2001) (same). 3 “strategic blunder” or “bad lawyering” of Fretwell, 506 U.S. 364, 369 (1993)). precisely the sort that under our precedents is insufficient to support a Cronic claim. Id. We agree with the district court that in light Likewise, counsel’s performance fell far short of the overwhelming evidence against Johnson of the “complete” failure required by the and his extensive prior criminal record, of Supreme Court. Bell, 122 S. Ct. at 1851. which the jury was made aware,6 there was no prejudice, even if we assume, arguendo, that C. counsel was ineffective. Given the seriousness Johnson’s ineffective assistance claim must of his crime and his record, it is highly likely therefore be analyzed under the standards of that Johnson would have been sentenced to Washington, in which the Court stressed that death even in the absence of Rains’s testimony. “[j]udicial scrutiny of counsel’s performance must be highly deferential” and that “every ef- Although Johnson describes Rains’s fort [must] be made to eliminate the distorting testimony as a “request for the death penalty,” effects of hindsight.” Washington, 466 U.S. at in fact Rains asked only that his son’s killer be 689. Thus, courts must “indulge a strong pre- “taken care of,” which suggests that he might sumption that counsel’s conduct falls within have been satisfied with the lesser punishment the wide range of reasonable professional as- of life imprisonment. At the very least, this sistance.” Id. In applying Washington, “we highly equivocal statement and the rest of will not find ineffective assistance of counsel Rains’s testimony certainly fell far short of merely because we disagree with counsel’s tri- prejudicing the defendant’s case to such an al strategy.” Crane v. Johnson, 178 F.3d 309, extent that it “rendered sentencing 312 (5th Cir. 1999). fundamentally unfair or unreliable.” Id. (citations omitted). Even if counsel is proven deficient, a Washington claim cannot be sustained without D. strong proof of prejudice. To prove such pre- Because we follow the district court in judice, Johnson must show “a reasonable prob- holding that there was no prejudice, we need ability that the result of the proceedings would not decide whether Johnson’s attorney have been different but for counsel’s performed so poorly as to overcome “the unprofessional errors.” Crane, 178 F.3d at strong presumption that counsel’s conduct 312 (citing Washington, 466 U.S. at 694). falls within the wide range of reasonable pro- “[T]he mere possibility of a different outcome fessional assistance.” Washington, 466 U.S. at is not sufficient to prevail on the prejudice 689. It seems probable, however, that “under prong.” Id.5 “Rather, the defendant must the circumstances, the challenged action might demonstrate that the prejudice rendered be considered sound trial strategy.” Id. sentencing ‘fundament ally unfair or unreliable.’” Id. (quoting Lockhart v. Given the egregious nature of Johnson’s of- fense and his criminal history, defense counsel legitimately might have concluded that Rains’s 5 See also Washington, 466 U.S. at 693 (noting that “[i]t is not enough for the defendant to show 6 that the errors had some conceivable effect on the Johnson had multiple felony convictions, in- outcome of the proceeding”). cluding for aggravated robbery and burglary. 4 testimony was unlikely to increase significantly petitioner’s trial counsel calling the victim’s his client’s already high chance of receiving the father to the stand . . . the jury would have death penalty. The possibility of eliciting a rendered a different verdict on either of the statement from the victim’s father opposing special issues before it”) (emphasis added). imposition of the death penalty therefore might have justified the attendant risks of calling In view of the overwhelming nature of the Rains to the stand. In retrospect, this strategy evidence against Johnson SSwho was seems to have failed; but in a Washington videotaped in the act of committing the crime analysis, “every effort [must] be made to elim- and then was identified by three witnesses as inate the distorting effects of hindsight.” Id. the man in the videotapeSSthere is no at 689. reasonable chance that the jury retained enough “residual doubt” concerning guilt that E. it might have decided to forego the death Johnson contends that the district court penalty but for defense counsel’s alleged errors erred by allegedly failing to take account of the in his questioning of Rains. Certainly, there is trial evidence in its evaluation of his claim of no reason to believe that any potential ineffective assistance. Johnson asserts that the prejudice in this regard was serious enough to evidence against him was sufficiently weak “render . . . sentencing fundamentally unfair or that, absent counsel’s ineffective performance unreliable.” Crane, 178 F.3d at 312. in the penalty phase, the jury’s “residual doubt” regarding guilt or innocence would The application for COA is DENIED. have led it to forego the death penalty. Moore v. Johnson, 194 F.3d 586, 619 (5th Cir. 1999). According to Johnson, the court erred in sup- posedly failing to consider both the guilt and punishment phases of the trial in determining “whether there is a reasonable probability that, but for counsel’s deficient performance, the jury might have answered the special issues put before it differently.” Id. “Residual doubt” left over from the guilt phase of a capital murder trial can have a sub- stantial impact on whether that same jury im- poses a death sentence during the punishment phase. Lockhart v. McCree, 476 U.S. 162, 181 (1986). The district court did indeed con- sider the full record, however. See Johnson v. Cockrell, No. SA-98-CA-133-EP, at 46-47 (W.D. Tex. Nov. 15, 2001) (holding that “[h]aving reviewed the entire trial record carefully, this Court concludes that there is no reasonable probability that but for the 5