Johnson v. Superintendent
Filing
12
OPINION AND ORDER - The Petition, pursuant to 28:2254, is hereby DENIED. ***Civil Case Terminated. Signed by Judge Rudy Lozano on 3/19/2013. (kds)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
EURANUS JOHNSON,
)
)
)
)
)
)
)
)
)
Petitioner,
vs.
SUPERINTENDENT,
Respondent.
CAUSE NO. 3:12-CV-443
OPINION AND ORDER
This matter is before the Court on a petition under 28 U.S.C.
Paragraph 2254 for Writ of Habeas Corpus by a person in State
Custody, filed by Euranus Johnson, a pro se prisoner, on August 21,
2012 (DE #1).
For the reasons set forth below, the petition (DE
#1) is DENIED, and the Court DENIES the petitioner a certificate of
appealability.
BACKGROUND
In deciding the petition, the Court must presume the facts set
forth by the state courts are correct.
28 U.S.C. § 2254(e)(1).
It
is Johnson’s burden to rebut this presumption with clear and
convincing evidence.
Id.
On direct appeal, the Indiana Court of
Appeals set forth the facts underlying Johnson’s conviction as
follows:
On January 7, 2003, at approximately 9:30 p.m., A.M.
parked her truck near her apartment in Indianapolis. As
A.M. exited her vehicle, Johnson, Rickie Johnson
(“Rickie”), and Richard White (“White”) approached her.
Johnson stuck a handgun into her side and ordered her to
get back into her truck. A.M. told the men that they
could “take whatever they wanted,” but they insisted that
she get into the truck. Johnson entered the driver's
seat and Rickie entered the passenger's seat, leaving
A.M. sitting between the two men. White rode in the bed
of the truck.
Rickie asked A.M. if she had “anything in [her] coat or
on [her]” and told her to give him her jacket and
jewelry. Rickie then asked if A.M. had any money and
went through her purse, taking forty dollars and A.M.'s
ATM card. Rickie told Johnson to drive the truck to a
bank. As they drove, Johnson threatened to “hurt” A.M.
if the men did not get any money, threatened to “bury”
her, and called her a “ ‘b* * * * ’ or something like
that.” Once they arrived at a bank with an ATM, Rickie
gave A.M.’s ATM card to White, asked A.M. for her PIN
number, and told the number to White. White went to the
ATM as Johnson, Rickie, and A.M. rode around the block.
When White returned, he said that he was unable to obtain
any money. Rickie angrily accused A.M. of lying about
the PIN number, and Johnson drove the group a block away
from the bank. Rickie and White then exited the truck
and walked back toward the bank, leaving A.M. in the
vehicle alone with Johnson.
With the other men gone, Johnson began touching A.M.'s
leg. A.M. said “no,” but Johnson responded, “I'm doing
this.” Johnson then stuck his hands down A.M.’s pants
and penetrated her vagina with his finger. Johnson told
A.M. to remove her tampon, and A.M. lowered her pants and
did so.
Johnson then removed his own pants and
penetrated A.M.’s vagina with his penis while holding the
gun against her shoulder. Johnson continued intercourse
until he ejaculated, then told A.M. to put her pants back
on.
Rickie and White returned to the car, and Rickie said
that they were still unable to obtain any money. Johnson
moved to the bed of the truck, while White entered the
driver’s seat and Rickie entered the passenger’s seat,
again leaving A.M. sitting in the middle. White drove to
a garage, and Johnson pulled A.M. from the truck. All
four entered the garage by crawling under the
partially-open garage door.
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Once they were all in the garage, Rickie told A.M. “that
since they didn’t get any money from [her] that [she] was
going to pay for it.” Rickie then unbuttoned his pants
and “showed that he wanted oral sex.” A.M. was “scared”
and “intimidated” because she was aware that the men had
a gun, so she complied with Rickie’s request. As A.M.
was performing oral sex on Rickie, he told her to get
down onto her knees, which she did. White then
approached, and Rickie told A.M. to get up, turn around,
and pull her pants down. A.M. continued oral sex with
Rickie, and White entered her vaginally from behind.
After a short period of time, both Rickie and White
backed away from A.M.
Johnson then approached A.M. with his pants down and told
her that he wanted oral sex. A.M. complied, then Johnson
told A.M. to stand up and sit on the edge of the car that
was in the garage. From this position, Johnson entered
A.M. vaginally for a brief period, and then requested
further oral sex, which A.M. did. Next, Johnson turned
A.M. around and entered her vaginally from behind. While
he was behind A.M., Johnson put his penis into her anus.
When A.M. moved forward and told Johnson that she was in
pain, Johnson “moved down” and entered her vaginally.
Johnson again told A.M. to turn around to face him and
had her lay back on the car. Johnson entered her
vaginally from the front and continued intercourse until
he ejaculated, and then he moved back, pulled up his
pants, and walked away.
As they exited the garage, A.M. saw that Johnson was
holding a gun. Johnson told A.M. to get into the back of
the truck, and he lay down next to her. While the two
lay next to each other, Johnson put the gun between
A.M.’s legs and asked her if she “want[ed] to get shot in
[her] pussy.” The truck eventually came to a stop and
Rickie and White told Johnson to get A.M. out of the
truck. Johnson refused and told the other men that he
wanted to take A.M. with them. After driving for a bit
longer, Rickie and White again stopped and told Johnson
to get A.M. out of the truck. This time Johnson agreed,
and A.M. was allowed to crawl out of the truck and walk
away. As A.M. walked away, she could see the shadow of
the truck, created by a streetlight, on the side of a
building. In the shadow, A.M. could see that Johnson was
standing in the back of the truck pointing the gun at
her. As the truck started to move, Johnson stumbled and
then sat down. The truck backed up past A.M. and drove
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away, and A.M. went to a nearby house, where someone
called 911.
A.M. was taken to Wishard Hospital for treatment and
evidence collection.
An examination showed multiple
vaginal injuries. A.M. told the doctor that she had been
anally penetrated and the doctor noted “multiple
abrasions between the vagina, lower vaginal orifice and
the upper rectum, or upper anal area.”
Johnson v. State, 837 N.E.2d 209, 211-13 (Ind. Ct. App. 2005)
(internal citations omitted).
White entered a plea agreement with
the state, and Johnson and Rickie were tried together in a trial
that
was
bifurcated
circumstances phase.
into
Id.
a
guilt
phase
and
an
Both were found guilty.
aggravating
Id.
Johnson
was convicted of rape, robbery, criminal deviate conduct, and
criminal confinement.
Id. at 213.
The jury also found beyond a
reasonable doubt that the state had proven several aggravating
circumstances.
Id.
The court sentenced Johnson to an aggregate
prison term of 151 years.
Id. at 213-14.
He appealed, raising two arguments: (1) the evidence was
insufficient to support the criminal deviate conduct count; and (2)
the trial court abused its discretion in imposing a sentence. Id.
at 214.
The Indiana Court of Appeals affirmed.
Id. at 214-16.
Johnson filed a petition to transfer to the Indiana Supreme Court,
raising the same two claims.
(DE # 6-6 at 1-14.)
The petition was
denied, Johnson v. State, 855 N.E.2d 966 (Ind. 2006) (Table), and
he did not seek review in the U.S. Supreme Court. (See DE #1 at 2.)
Thereafter, Johnson filed a petition for post-conviction
4
relief alleging ineffective assistance of trial and appellate
counsel and other claims.
Johnson v. State, No. 49A042-1103-PC-
195, slip op. at 1 (Ind. Ct. App. Mar. 29, 2012).
He was
represented by two privately retained attorneys in the postconviction proceedings.
Id.
Following a two-day evidentiary
hearing, the petition was denied.
Id. at 2-3.
Johnson appealed
pro se.
Id.
He did not challenge the denial of his claims on the
merits,
but
instead
claimed
solely
that
he
was
deprived
of
effective assistance of counsel in the post-conviction proceedings.
Id. at 1-2. The Court of Appeals affirmed, and the Indiana Supreme
Court denied his petition to transfer.
N.E.2d 1214 (Ind. 2012) (Table).
U.S. Supreme Court.
Johnson v. State, 971
He did not seek review in the
(DE #1 at 3.)
Thereafter, Johnson filed a federal habeas petition raising
the following claims: (1) his trial attorneys were ineffective on
numerous grounds; (2) his appellate attorney was ineffective in
failing to raise certain arguments on direct appeal; (3) the trial
court violated his due process rights in imposing a sentence; and
(4) his post-conviction attorneys were ineffective. (DE #1 at 330.)
DISCUSSION
Johnson’s petition is governed by the provisions of the
Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”).
5
See Lindh v. Murphy, 521 U.S. 320, 336 (1997).
The AEDPA allows a
district court to issue a writ of habeas corpus on behalf of a
person in custody pursuant to a state court judgment “only on the
ground that he is in custody in violation of the Constitution or
laws or treaties of the United States.”
28 U.S.C. § 2254(a).
The
Court can grant an application for habeas relief if it meets the
stringent requirements of 28 U.S.C. § 2254(d), set forth as
follows:
An application for a writ of habeas corpus on behalf of
a person in custody pursuant to the judgment of a State
court shall not be granted with respect to any claim that
was adjudicated on the merits in State court proceedings
unless the adjudication of the claim——
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the
Supreme Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of
the evidence presented in the State court
proceeding.
Under this deferential standard, a federal habeas court must
“attend closely” to the decisions of state courts and “give them
full effect when their findings and judgments are consistent with
federal law.”
Williams v. Taylor, 529 U.S. 362, 383 (2000).
A
state court decision is “contrary to” federal law if the court
arrives at a conclusion opposite to that reached by the Supreme
Court or reaches an opposite result in a case involving facts
materially indistinguishable from relevant Supreme Court precedent.
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Bell v. Cone, 535 U.S. 685, 694 (2002).
A federal court may grant
habeas relief under the “unreasonable application” clause if the
state court identifies the correct legal principle from Supreme
Court precedent but unreasonably applies that principle to the
facts of the petitioner’s case. Wiggins v. Smith, 539 U.S. 510, 520
(2003).
To warrant relief, a state court’s decision must be more
than incorrect or erroneous; it must be “objectively” unreasonable.
Id.
In other words, “[a] state court’s determination that a claim
lacks merit precludes federal habeas relief so long as fairminded
jurists could disagree on the correctness of the state court’s
decision.” Harrington v. Richter, ——U.S.——, 131 S. Ct. 770, 786
(2011).
Here, the state argues that Johnson’s first three claims are
procedurally defaulted, because they were not properly presented in
one complete round of state review.
agrees.
(DE #6 at 8-11.)
The Court
Before considering the merits of a claim, the Court must
ensure that the state courts have been given the first opportunity
to address and correct violations of their prisoner’s federal
rights.
O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).
For
that opportunity to be meaningful, the petitioner must fairly
present his constitutional claim in one complete round of state
review, either on direct appeal or on post-conviction review.
Baldwin v. Reese, 541 U.S. 27, 30-31 (2004); Boerckel, 526 U.S. at
845. This includes seeking discretionary review in the state court
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of last resort.
Boerckel, 526 U.S. at 848.
Under the companion
procedural default doctrine, a federal court is precluded from
reaching the merits of a claim when: (1) the claim was presented to
the state courts and was denied on the basis of an adequate and
independent state procedural ground; or (2) the claim was not
presented to the state courts and the time for doing so has passed
under state law.
Coleman v. Thompson, 501 U.S. 722, 735 (1991).
Here, Johnson raised claims of ineffective assistance of trial
and appellate counsel in the post-conviction proceedings, but he
did not raise these claims on appeal to the Indiana Court of
Appeals.
Instead, he focused entirely on alleged errors made by
post-conviction counsel. Johnson, No. 49A042-1103-PC-195, slip op.
at 1.
Johnson’s failure to raise these claims at each level of
state review constitutes a procedural default.
As to the sentencing claim, Johnson challenged alleged errors
at sentencing on direct appeal, but his claims were based entirely
on state law.
(See DE # 6-6 at 1-12.)
To properly exhaust, the
petitioner must “present both the operative facts and the legal
principles
that
control
each
claim
to
the
state
judiciary.”
Stevens v. McBride, 489 F.3d 883, 894 (7th Cir. 2007).
This
includes alerting the state court to the “federal nature” of the
claim.
Baldwin, 541 U.S. at 33.
Johnson may not assert a federal
due process claim in this proceeding that was not presented to the
state courts, nor may he seek federal habeas relief based on
8
alleged errors of state law at sentencing. Estelle v. McGuire, 502
U.S. 62, 67 (1991).
Accordingly, this claim is defaulted as well.
A habeas petitioner can overcome a procedural default by
showing both cause for the default and a resulting prejudice.
Wainwright v. Sykes, 433 U.S. 72, 90 (1977).
Cause sufficient to
excuse a procedural default is defined as “some objective factor
external to the defense” which prevented the petitioner from
pursuing his constitutional claim in state court.
Carrier, 477 U.S. 478, 488 (1986).
Murray v.
Routine matters such as a
petitioner’s pro se status or lack of knowledge of the law do not
establish cause to excuse a procedural default.
See Smith v.
McKee, 598 F.3d 374, 385 (7th Cir. 2010); Harris v. McAdory, 334
F.3d 665, 669 (7th Cir. 2003).
Alternatively,
the
petitioner
can
overcome
a
procedural
default by establishing that the Court’s refusal to consider a
defaulted claim would result in a fundamental miscarriage of
justice.
House v. Bell, 547 U.S. 518, 536 (2006).
This exception
requires
the
constitutional
petitioner
to
establish
that
“a
violation has resulted in the conviction of one who is actually
innocent of the crime.”
A
petitioner
who
Schlup v. Delo, 513 U.S. 298, 324 (1995).
asserts
actual
innocence
“must
demonstrate
innocence; the burden is his, not the state’s[.]” Buie v. McAdory,
341 F.3d 623, 626-27 (7th Cir. 2003) (emphasis in original).
Furthermore, actual innocence means “factual innocence, not mere
9
legal insufficiency.”
(1998).
Bousley v. United States, 523 U.S. 614, 623
This is a difficult standard to meet, and such claims are
“rarely successful.”
Schlup, 513 U.S. at 324.
Johnson filed a lengthy traverse in support of his petition,
but he does not directly respond to the state’s procedural default
arguments or provide grounds for excusing his defaults, and instead
focuses on the merits of his claims.1
(DE #11-1.) Because he has
failed to provide grounds for excusing his defaults, his first
three claims cannot be reviewed on the merits.
In
his
final
claim,
Johnson
argues
that
he
was
denied
effective assistance of counsel in the post-conviction proceedings.
(DE #1 at 26-30.)
The state argues that this claim not does not
provide a cognizable basis for granting federal habeas relief.
Again, the Court agrees.
As a general matter, errors in the post-
conviction proceedings are beyond the scope of federal habeas
1
Although Johnson does not expressly make this argument, the
Court has considered whether his claim that appellate counsel
failed to raise a proper challenge to his sentence on direct
appeal could be used to excuse his procedural default of the
sentencing claim. Although attorney error can constitute cause
for excusing a procedural default, the exhaustion doctrine
requires that an ineffective assistance claim be presented to the
state court as an independent claim before it may be used to
establish cause for a procedural default. Edwards v. Carpenter,
529 U.S. 446, 451-52 (2000); Murray, 477 U.S. at 490. If the
ineffective assistance claim being used to excuse a procedural
default was itself not properly raised in state court, “the
petitioner will be fully defaulted.” Dellinger v. Bowen, 301
F.3d 758, 767 (7th Cir. 2002). Here, as stated above, Johnson did
not properly exhaust a claim of ineffective assistance of
appellate counsel in one complete round of state review, and so
he is fully defaulted.
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review. Pennsylvania v. Finley, 481 U.S. 551 (1987); Montgomery v.
Meloy, 90 F.3d 1200, 1206 (7th Cir. 1996). Moreover, the AEDPA
specifically provides: “The ineffectiveness or incompetence of
counsel
during
Federal
or
State
collateral
post-conviction
proceedings shall not be a ground for relief in a proceeding
arising under section 2254.”
28 U.S.C. § 2254(i). Accordingly,
this claim does not present a cognizable basis for overturning
Johnson’s conviction.
In his traverse, Johnson suggests that he is nevertheless
entitled to relief under Martinez v. Ryan, ——U.S.——, 132 S. Ct.
1309 (2012).
His citation to that case is unavailing.
In
Martinez, the Supreme Court reaffirmed that a federal habeas
petitioner is precluded from asserting ineffective assistance of
post-conviction counsel as a ground for overturning his conviction.
Id.
at
1316.
Nevertheless,
the
Court
held
that
in
certain
circumstances, errors by post-conviction counsel may be used to
excuse a procedural default of a claim based on ineffective
assistance of trial counsel.
Id. at 1321-22.
Here, Johnson is
asserting ineffective assistance of post-conviction counsel as a
free-standing claim, which he cannot do even after Martinez.
Even if Johnson were trying to assert an error by postconviction counsel as grounds to excuse a procedural default, his
reliance on Martinez would still be unavailing.
As explained
above, Johnson’s default of his ineffective assistance claims
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occurred on post-conviction appeal, when he was proceeding pro se,
not due to an error by post-conviction counsel.
Furthermore, the
limited exception adopted in Martinez applies to defaulted claims
of ineffective assistance of trial counsel when state law precludes
the petitioner from raising such a claim until the post-conviction
proceedings.
Martinez, 132 S. Ct. at 1317-18.
In Indiana, by
contrast, a claim that trial counsel was ineffective can be raised
either on direct appeal or in a post-conviction proceedings.
Benefiel v. State, 716 N.E.2d 906, 911 (Ind. 1999). Thus, Martinez
is inapplicable to Johnson’s case.2 For these reasons, the petition
will be denied.
Pursuant to RULE 11
OF THE
RULES GOVERNING SECTION 2254 CASES, the
Court must either issue or deny a certificate of appealability in
all cases where it enters a final order adverse to the petitioner.
To obtain a certificate of appealability, the petitioner must make
a substantial showing of the denial of a constitutional right by
establishing “that reasonable jurists could debate whether (or, for
that matter, agree that) the petition should have been resolved in
2
Johnson has also failed to establish that his post-conviction attorneys provided
ineffective assistance. As the Indiana Court of Appeals concluded, the
record shows that Johnson’s two attorneys presented witnesses on
his behalf at a two-day evidentiary hearing, tendered numerous
exhibits, obtained leave to amend the petition during the hearing
to add another claim, obtained the trial record, prepared a
detailed proposed final order, and otherwise vigorously
represented him throughout the post-conviction proceedings.
Johnson, No. 49A04-1103-PC-195, slip op. at 4-5. This case is not akin to
Martinez, where the attorney filed a brief stating that she could find no colorable claims to raise
on the petitioner’s behalf. Martinez, 132 S. Ct. at 1314.
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a different manner or that the issues presented were adequate to
deserve encouragement to proceed further.”
Slack v. McDaniel, 529
U.S. 473, 484 (2000) (internal quote marks and citation omitted).
As is fully explained above, Johnson’s claims are procedurally
defaulted or otherwise non-cognizable.
Nothing before the Court
suggests that jurists of reason could debate the outcome of the
petition or find a reason to encourage Johnson to proceed further.
Accordingly, the Court declines to issue him a certificate of
appealability.
CONCLUSION
For the reasons set forth above, the petition (DE #1) is
DENIED, and the Court DENIES the petitioner a certificate of
appealability.
DATED: March 19, 2013
/s/ RUDY LOZANO, Judge
United States District Court
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