Johnson v. Davey

Filing 27

MEMORANDUM DECISION signed by Senior Judge James K. Singleton on 4/10/2018 DENYING 2 Petition for Writ of Habeas Corpus. IT IS FURTHER ORDERED that the Court DECLINES to issue a Certificate of Appealability. Any further request for a Certificate of Appealability must be addressed to the 9th Circuit Court of Appeals. CASE CLOSED. (York, M)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
DOSHMEN JOHNSON,
No. 2:16-cv-01362-JKS
Petitioner,
MEMORANDUM DECISION
vs.
DAVID BAUGHMAN, Warden, California
State Prison, Sacramento,1
Respondent.

Doshmen Johnson, a state prisoner represented by counsel, filed a Petition for a Writ of
Habeas Corpus with this Court pursuant to 28 U.S.C. § 2254. Johnson is in the custody of the
California Department of Corrections and Rehabilitation and incarcerated at California State
Prison, Sacramento. Respondent has answered, and Johnson has replied.
I. BACKGROUND/PRIOR PROCEEDINGS
On August 27, 2008, Johnson was charged with the murder of Perry Steele. The
information additionally alleged as enhancements that Johnson intentionally committed the
murder by discharging a firearm from a vehicle, that the murder was committed for the benefit of
a criminal street gang, and that Johnson personally discharged a firearm, causing death. Johnson
pleaded not guilty, denied the special allegations, and proceeded to a jury trial. On direct appeal
of his conviction, the California Court of Appeal laid out the following facts underlying the
charges against Johnson and the evidence presented at trial:
On April 14, 2008, at approximately 1:00 a.m., Perry Steele, accompanied by
Omari O’Neil and Franki Jones, was driving to a liquor store on Del Paso Boulevard.
1

David Baughman, Warden, California State Prison, Sacramento, is substituted for
Dave Davey, former Warden, California State Prison, Corcoran. FED. R. CIV. P. 25(c).

Steele and O’Neil were members of the Del Paso Heights Bloods (DPHB), a criminal
street gang; Jones was the girlfriend of Fred Patton, another DPHB member, who was at
that time in jail.
Jones, who was in the rear passenger seat behind the driver, testified that while
Steele was stopped at a traffic light, she saw [Johnson] in the front passenger seat of a
black four-door car next to them. [Johnson] was trying to get Steele’s attention, and
Jones so informed Steele. Steele opened his car door and [Johnson] asked Steele if he
had “weed.” Steele replied no and shut the car door.
Steele drove to the liquor store, and as he, O’Neil, and Jones were getting out of
Steele’s car, the black car containing [Johnson] drove in behind them. Jones heard
somebody from the black car yell, “[W]here are you from,” and [Johnson] began
shooting, fatally wounding Steele. The black car then drove off.
Detective Robert Quinn, an expert on criminal street gangs, testified that
[Johnson] was a member of TNA (Tearin Niggas Apart), which is a subset of the street
gang NHGC (North Highland Gangster Crips), and that Steele was a member of DPHB, a
rival gang. Quinn opined that gang rivalry was the motive for the killing of Steele and
that the killing was done to benefit the street gang to which [Johnson] belonged.
Although [Johnson] did not testify, he called as an expert witness Dr. Mitchell
Eisen, who testified regarding the unreliability of eyewitness identification by persons
under stress and who may have been influenced in their identification by other factors.
People v. Johnson, No. C063252, 2011 WL 4906741, at *1 (Cal. Ct. App. Oct. 11, 2011).
At the conclusion of deliberations, the jury found Johnson guilty of first-degree murder
and also found true all the special allegations. The trial court sentenced Johnson to life
imprisonment without the possibility of parole (“LWOP”) for the murder with the discharge of a
firearm from a motor vehicle enhancement, plus 25 years to life imprisonment for the personal
discharge of a firearm causing death enhancement, plus 10 years’ imprisonment for the gang
enhancement.
Through counsel, Johnson appealed his conviction, arguing that: 1) the trial court
erroneously admitting portions of a MySpace page, alleged to belong to Johnson, which the
prosecution argued supported the gang enhancement; 2) the evidence was legally insufficient to
support the jury’s guilty verdict on the murder charge; and 3) the imposition of the criminal
conviction fee assessment, authorized by statute effective after the offense date, violated his
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protection against Ex Post Facto laws.2 Johnson filed a counseled petition for review in the
California Supreme Court, raising his evidentiary and sufficiency of the evidence claims. The
Supreme Court denied review without comment on December 21, 2011.
Johnson then filed in the Superior Court a counseled petition for habeas relief. In that
petition, Johnson claimed that: 1) trial counsel was ineffective for failing to present cell phone
records which Johnson claimed would have shown that he was not at the scene of the shooting;
2) newly-discovered evidence demonstrated that he was actually innocent; 3) the newlydiscovered evidence, corroborated by the cell phone record data, warranted an order to show
cause and an evidentiary hearing; 4) the admission of “cumulative, inflammatory and prejudicial
gang evidence” from the MySpace account deprived Johnson of his right to a fair trial; and 5) the
LWOP sentence, which was imposed for an offense occurring when Johnson was 17 years old,
violated the Eighth Amendment. In a reasoned opinion, the superior court denied Claims 1
through 4 but ordered Respondent to show cause with respect to Claim 5. Respondent conceded
that Johnson’s sentence violated U.S. Supreme Court precedent, and the court vacated the
sentence for re-sentencing in a manner consistent with Miller v. Alabama, 567 U.S. 460 (2012).3
Johnson was subsequently resentenced, based on the stipulation of the parties, to an aggregate
term of 50 years to life imprisonment.

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Johnson also argued on direct appeal that the 10-year imprisonment term imposed
for the gang enhancement was erroneous because he received a LWOP sentence. The
prosecution agreed that the imprisonment term attached to the gang enhancement should be
stricken, and the Sacramento Superior Court struck the 10-year enhancement on its own motion.
3

In Miller, the Supreme Court held that the “Eighth Amendment forbids a
sentencing scheme that mandates [LWOP] for juvenile offenders.” Miller, 567 U.S. at 479.
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Again proceeding through counsel, Johnson filed a petition for habeas relief in the
Supreme Court of California. In that petition, Johnson again argued that: 1) trial counsel was
ineffective for failing to present cell phone records which Johnson claimed would have shown
that he was not at the scene of the shooting; 2) newly-discovered evidence demonstrated that he
was actually innocent; and 3) the newly-discovered evidence, corroborated by the cell phone
record data, warranted an order to show cause and an evidentiary hearing. After ordering and
obtaining an informal response by Respondent, the California Supreme Court summarily denied
the habeas petition on April 27, 2016.
Johnson then filed a counseled Petition for a Writ of Habeas Corpus to this Court on June
17, 2016, the timeliness of which Respondent does not contest. See 28 U.S.C. § 2244(d)(1)(A).
That Petition is now before the undersigned judge and ripe for adjudication.
II. GROUNDS/CLAIMS
In his counseled Petition before this Court, Johnson argues that trial counsel provided
ineffective assistance by failing to present cell phone records which Johnson claims would have
shown that he was not at the scene of the shooting.
III. STANDARD OF REVIEW
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C.
§ 2254(d), this Court cannot grant relief unless the decision of the state court was “contrary to, or
involved an unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States,” § 2254(d)(1), or “was based on an unreasonable
determination of the facts in light of the evidence presented in the State court proceeding,”
§ 2254(d)(2). A state-court decision is contrary to federal law if the state court applies a rule that

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contradicts controlling Supreme Court authority or “if the state court confronts a set of facts that
are materially indistinguishable from a decision” of the Supreme Court, but nevertheless arrives
at a different result. Williams v. Taylor, 529 U.S. 362, 406 (2000).
The Supreme Court has explained that “clearly established Federal law” in § 2254(d)(1)
“refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the time of the
relevant state-court decision.” Id. at 412. The holding must also be intended to be binding upon
the states; that is, the decision must be based upon constitutional grounds, not on the supervisory
power of the Supreme Court over federal courts. Early v. Packer, 537 U.S. 3, 10 (2002). Where
holdings of the Supreme Court regarding the issue presented on habeas review are lacking, “it
cannot be said that the state court ‘unreasonabl[y] appli[ed] clearly established Federal law.’”
Carey v. Musladin, 549 U.S. 70, 77 (2006) (citation omitted).
To the extent that the Petition raises issues of the proper application of state law, they are
beyond the purview of this Court in a federal habeas proceeding. See Swarthout v. Cooke, 131 S.
Ct. 859, 863 (2011) (per curiam) (holding that it is of no federal concern whether state law was
correctly applied). It is a fundamental precept of dual federalism that the states possess primary
authority for defining and enforcing the criminal law. See, e.g., Estelle v. McGuire, 502 U.S. 62,
67-68 (1991) (a federal habeas court cannot reexamine a state court’s interpretation and
application of state law); Walton v. Arizona, 497 U.S. 639, 653 (1990) (presuming that the state
court knew and correctly applied state law), overruled on other grounds by Ring v. Arizona, 536
U.S. 584 (2002).
In applying these standards on habeas review, this Court reviews the “last reasoned
decision” by the state court. See Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004)

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(citing Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002)). A summary denial is an adjudication
on the merits and entitled to deference. Harrington v. Richter, 562 U.S. 86, 99 (2011). Under
the AEDPA, the state court’s findings of fact are presumed to be correct unless the petitioner
rebuts this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Miller-El v.
Cockrell, 537 U.S. 322, 340 (2003).
IV. DISCUSSION
Johnson raises a single claim on federal habeas review: that trial counsel was ineffective
for failing to present cell phone records which, he alleges, would have shown that he was not at
the scene of the shooting. To demonstrate ineffective assistance of counsel under Strickland v.
Washington, a defendant must show both that counsel’s performance was deficient and that the
deficient performance prejudiced his defense. 466 U.S. 668, 687 (1984). A deficient
performance is one in which “counsel made errors so serious that counsel was not functioning as
the ‘counsel’ guaranteed by the Sixth Amendment.” Id.
The Supreme Court has explained that, if there is a reasonable probability that the
outcome might have been different as a result of a legal error, the defendant has established
prejudice and is entitled to relief. Lafler v. Cooper, 132 S. Ct. 1376, 1385-86 (2012); Glover v.
United States, 531 U.S. 198, 203-04 (2001); Williams, 529 U.S. at 393-95. Where a habeas
petition governed by AEDPA alleges ineffective assistance of counsel, the Strickland prejudice
standard is applied and federal courts do not engage in a separate analysis applying the Brecht
harmlessness standard. Avila v. Galaza, 297 F.3d 911, 918, n.7 (9th Cir. 2002); see also Musalin
v. Lamarque, 555 F.3d 830, 834 (9th Cir. 2009). Under this rubric, in reviewing ineffective
assistance of counsel claims in a federal habeas proceeding:

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The question “is not whether a federal court believes the state court’s
determination” under the Strickland standard “was incorrect but whether that
determination was unreasonable—a substantially higher threshold.” And, because the
Strickland standard is a general standard, a state court has even more latitude to
reasonably determine that a defendant has not satisfied that standard.
Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (citations omitted); see also Runningeagle v.
Ryan, 686 F.3d 758, 775 (9th Cir. 2012).
Thus, Johnson must show that defense counsel’s representation was not within the range
of competence demanded of attorneys in criminal cases, and there is a reasonable probability
that, but for counsel’s ineffectiveness, the result would have been different. See Hill v. Lockhart,
474 U.S. 52, 57 (1985). An ineffective assistance of counsel claim should be denied if the
petitioner fails to make a sufficient showing under either of the Strickland prongs. See
Strickland, 466 U.S. at 697 (courts may consider either prong of the test first and need not
address both prongs if the defendant fails on one).
Johnson raised his ineffective assistance of counsel claims in counseled habeas petitions
filed in the California Superior and Supreme Courts. The “last reasoned decision” addressing
the claim is the Superior Court’s denial:
Petitioner next claims that his trial counsel was ineffective in failing to introduce
at trial cell phone records that were then available to counsel, that would have shown that
petitioner was not at the scene of the shooting. He claims that the subscriber of the cell
phone was Candace Bledsoe as shown by Metro PCS records; that Bledsoe told a defense
investigator that she was the subscriber but had given the phone to petititioner; that
petitioner’s brother Steve Diggs told a defense investigator that Digg’s cell phone
number 707-712-1260 was in the Metro PCS record of calls made by that phone on the
night of the shooting; that Diggs told the investigator that petitioner’s phone number at
the time of the shooting was the phone in question and that petitioner had called Diggs
that night using that number several times; and that the Metro PCS records show that
between 11:00 p.m. on April 13, 2008 and 2:00 a.m. on April 14, 2008 there were a total
of 50 calls to and from the phone in question from 14 different cell sites in the greater

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Sacramento area, as shown on the maps attached as Exhibit J,[4] which shows a pattern of
travel a distance in a direction away from the site of the shooting at the time of the
shooting.
Petitioner also attaches as Exhibit G the Metro PCS records, which show that at
12:52 a.m. on April 14, 2008 the phone in question had called 702-712-1260, and again
at 1:17 a.m. that same morning. Petitioner claims the shooting took place at 1:15 a.m.
However, Exhibit G also shows that there was no phone call made between 1:01 a.m. and
1:13 a.m. The Exhibit J map does not make it appear to be impossible for the holder of
the phone to have driven back to the scene, done the shooting, then returned to backtrack
along the path that had earlier been taken, and that there may have been a discrepancy
between the Metro PCS determination of time and time known by whoever determined it
was the exact time of the shooting. If the shooting had actually taken place several
minutes earlier, it might have been possible for the holder of the phone to have doubled
back to make it appear that the holder of the phone was not in the area at the time of the
shooting. And, petitioner attaches a copy of a Sacramento police report as Exhibit B,
showing “Reported: Apr-14-2008 01:15:25” and “FELONY ASSAULT-LESS THAN 15
MINUTES AGO,” which could also support such a theory.
Nor does petitioner establish with reasonably available documentary evidence
that the phone in question was in fact in his possession at the time in question, or that he
had called anyone, including his brother, on the phone to show that it was in his
possession. Instead, petitioner attaches only hearsay written statements from a defense
investigator regarding the investigator’s conversations with Bledsoe and Diggs, attached
as exhibits F and G, and another regarding the investigator’s conversations with Amber
Carmichael, attached as Exhibit K. These are not competent to establish that petitioner
had the phone in his possession, such that the phone records would even be relevant.
Docket No. 20-2 at 8-10.
The record additionally indicates that the cell phone issue arose when Johnson moved
post-verdict for a new trial and to replace his trial counsel pursuant to Marsden.5 In support of
his request for a new trial, Johnson cited counsel’s “[f]ailure to entail cell phone records as

4

The exhibits attached to Johnson’s habeas petitions are attached as exhibits to the
instant Petition at Docket No. 2-1.
5

People v. Marsden, 465 P.2d 44 (Cal. 1970) (holding it was error for the trial
court to deny a defendant’s motion to relieve his court-appointed attorney without holding a
hearing to allow the defendant to explain its grounds).
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evidence of defendant innocence.” The trial court held a Marsden motion at which defense
counsel explained:6
In regard to the particular issues raised in this case, the cell phone records were
requested in this case and we went to great lengths to get numerous cell phone records
because there was some claim at one point in the defense that Mr. Johnson had a cell
phone.
We actually hired a cell phone expert to review records, and he determined that a
cell phone was miles away from the murder scene at the time of the murder. Then the
question became how can we put that cell phone in Mr. Johnson’s possession at the time
because people can easily pass cell phones to others and share cell phones.
I made a tactical decision after discussing it at length with Mr. Johnson that that
would do more harm than good.
Initially, there was an alibi defense that Mr. Johnson was at a party at the time of
the murder and never left the party. And despite my direction to him not to talk about
this defense while making calls and taking visits at the jail, his girlfriend Latoya Howard
came to visit him and they talked about this and the DA was fully aware about this
conversation they had about this party and never leaving it. Well that party was nowhere
ne[ar] where the cell phone was, according to the expert, so that presented a serious proof
problem.
To prove that he had the cell phone would have required calling numerous
witnesses with dubious character, some of his friends and relatives.
And the actual subscriber to the cell phone is not Mr. Johnson, it’s a girl. We
talked to her, and I thought just putting her on the stand alone would cause serious
problems for him because of the whole theory that this is a gang-related shooting, and I
didn’t want to bolster that for obvious reasons. Almost all of the witnesses that would
have been required to be called were of that character.
On top of that, there were certain phone calls made at or near the time of the
murder that Mr. Johnson could not explain, and I thought if you were going to go down
that road you gotta be able to explain all these things.
So after mulling it over and mulling it over, and we talked about it several times,
the decision was made that with a strong defense that I believe we had going to trial as
we did when there is only one eyewitness that has demonstrated herself not to be
believable on a variety of fronts and even admitted so during the trial, thought that was a
better tactic to take.
Docket No. 19-5 at 238-40.

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Although the transcript of the Marsden hearing was initially filed under seal, a
previously-assigned magistrate judge of this Court reviewed the transcript and, upon the parties’
stipulation, ordered that the transcript be unsealed and transmitted to the parties. Docket No. 18.
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In his counseled Traverse, Johnson argues that counsel’s statements at the hearing should
be disregarded because they “were not evidence and were not at all reliable.” Putting aside the
fact that Johnson fails to establish that the states courts improperly relied on counsel’s hearing
statements, particularly given that the superior court’s denial rested on shortcomings in the
proposed evidence rather than on counsel’s reasons for declining to present it, such argument
wholly ignores that this court is required to “strongly presume[]” that counsel made such
decision in the exercise of his professional judgment. See Strickland, 466 U.S. at 690; see also
Yarborough v. Gentry, 540 U.S. 1, 5 (2003) (recognizing a strong presumption that counsel took
actions “for tactical reasons rather than through sheer neglect”). The state court’s determination
that Johnson failed to provide sufficient evidence to overcome the presumption neither
contravened nor unreasonably applied federal law. Given its shortcomings, as detailed in the
superior court’s thorough denial of Johnson’s claim, the state court reasonably found that the
evidence in the exhibits attached to Johnson’s Petition was of insufficient exculpatory value to
demonstrate that counsel was ineffective. Johnson is not entitled to relief on this claim.
V. CONCLUSION AND ORDER
Johnson is not entitled to relief on any ground raised in his Petition.
IT IS THEREFORE ORDERED THAT the Petition under 28 U.S.C. § 2254 for Writ
of Habeas Corpus is DENIED.
IT IS FURTHER ORDERED THAT the Court declines to issue a Certificate of
Appealability. See 28 U.S.C. § 2253(c); Banks v. Dretke, 540 U.S. 668, 705 (2004) (“To obtain
a certificate of appealability, a prisoner must ‘demonstrat[e] that jurists of reason could disagree
with the district court’s resolution of his constitutional claims or that jurists could conclude the

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issues presented are adequate to deserve encouragement to proceed further.’” (quoting Miller-El,
537 U.S. at 327)). Any further request for a Certificate of Appealability must be addressed to the
Ninth Circuit Court of Appeals. See FED. R. APP. P. 22(b); 9TH CIR. R. 22-1.
The Clerk of the Court is to enter judgment accordingly.
Dated: April 10, 2018.
/s/James K. Singleton, Jr.
JAMES K. SINGLETON, JR.
Senior United States District Judge

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