JOHNSON v. WILSON
ENTRY - ON PETITION FOR A WRIT OF HABEAS CORPUS AND DENYING CERTIFICATE OF APPEALABILITY; Having failed to make a substantial showing of denial of a constitutional right puruant to Federal Rule of Appellate Procedure 22(b), Rule 11(a) of the Rules Governing ' 2254 proceedings, and 28 U.S.C. ' 2253(c), the Court finds Johnson has not shown that reasonable jurists would find it "debatable whether [this court] was correct in itsprocedural ruling." Slack v. McDaniel, 529 U.S. 473, 484 (2000). The Court therefore DENIES a certificate of appealability. Signed by Judge Tanya Walton Pratt on 8/4/2014.(CKM)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
BILL WILSON, Superintendent,
Indiana State Prison,
Case No. 1:12-cv-1600-TWP-DKL
ENTRY ON PETITION FOR A WRIT OF HABEAS CORPUS
AND DENYING CERTIFICATE OF APPEALABILITY
This matter is before the Court on a Petition for Writ of Habeas Corpus filed by Petitioner
Robert Johnson (“Johnson”). (Filing No. 1). Johnson was convicted of two counts of murder
and sentenced to two consecutive fifty-five year terms. Challenges to his murder convictions
were rejected by the Indiana state courts and this action followed. For the reasons explained in
this Entry, Johnson’s Petition for Writ of Habeas Corpus must be DENIED. In addition, the
Court finds that a certificate of appealability should not be issued.
The State of Indiana charged, and Johnson was convicted of, the murders of Tamnika
Powell and her newborn son. Johnson’s convictions and sentences were affirmed on appeal in
Johnson v. State, No. 49A04-0402-CR-113 (Ind.Ct.App. 2005) (Johnson I). Johnson’s petition
for transfer was denied on August 25, 2005. His petition for post-conviction relief was denied on
October 4, 2010, and the denial of his petition for post-conviction relief was affirmed on appeal
in Johnson v. State, No. 49A02-1010-PC-1242 (Ind.Ct.App. 2011) (Johnson II). The Indiana
Supreme Court denied Johnson’s petition for transfer on January 26, 2012.
District court review of a habeas petition presumes all factual findings of the state court
to be correct, absent clear and convincing evidence to the contrary. Daniels v. Knight, 476 F.3d
426 (7th Cir. 2007). Therefore, the Court adopts the summary of the evidence made in Johnson I:
The facts favorable to the conviction are that Johnson lived with Tamnika
Powell and their young son, Robert. Powell was pregnant and due to deliver on
May 27, 2003. At about 5:00 a.m. on May 10, 2003, Johnson placed a 911 phone
call and stated that he heard someone walking through his house when he woke
up. He also stated that he had just shot his pregnant wife. Deputies Bill Carter
and Gary Judd of the Marion County Sheriff’s Department arrived at Johnson’s
house approximately three minutes after Johnson made the call. When the
deputies arrived, Johnson was sitting calmly on the front porch holding Robert.
Deputy Judd spoke with Johnson while Deputy Carter checked the house. He
found Tamnika bleeding laying face down in the bedroom. He did not detect a
pulse. Emergency medical personnel arrived on the scene and attempted to
resuscitate Tamnika, but were unsuccessful. Emergency personnel noted that
Tamnika was eight or nine months pregnant, and she was transported to Wishard
At the hospital, Dr. Victoria Palmer-Smith performed an emergency
Cesarean section on Tamnika’s body and delivered a boy. The child was blue
rather than pink in color, was in respiratory distress, did not move spontaneously,
and his heartbeat was extremely slow for a newborn — approximately thirty beats
per minute. He was immediately placed on a respirator and sent to neonatal
intensive care. After he was transferred to neonatal intensive care, the baby
experienced several episodes of cardiorespiratory arrest, and finally died on May
11, 2003, the day after his birth.
An autopsy was performed on Tamnika’s body. It was determined that
she had suffered a laceration on the back of her head that was consistent with
being struck by a two-by-four board, as well as three gunshot wounds. At least
one of the bullet wounds was inflicted while Tamnika was lying down. An
autopsy on the baby’s body showed that the infant was full term or nearly full
term at the time of birth and was completely normal in development. The autopsy
revealed the baby’s organs were damaged as a result of lack of oxygen, and the
cause of death was determined to be oxygen deprivation. As a result of the
shooting, Johnson was charged with two counts of murder, one for each victim,
i.e., Tamnika and her infant son.
Johnson was incarcerated at the Marion County Jail before trial. He
shared a cell with Leon Smith, whom he had known for ten years. Smith had two
D felony cases pending against him. One evening, Johnson told Smith that he
(Johnson) had been out drinking one night with friends, one of whom told him
that he (Johnson) might not be the father of the baby Tamnika was carrying.
Johnson told Smith that he and Tamnika argued when he got home, and the
confrontation became physical. After throwing Tamnika around the laundry
room, Johnson went to the bedroom and retrieved a pistol. When Tamnika came
down the hallway, Johnson shot her twice with a pistol. After she had fallen to
the floor, Johnson retrieved a rifle and shot her where she lay. According to
Johnson, Tamnika was still alive when he called the police.
After Johnson had relayed the above information to Smith, Smith asked
his girlfriend to contact the Marion County Prosecutor’s Office (the Prosecutor’s
Office). After speaking with Smith, the Prosecutor’s Office agreed to drop the
two D felony charges against Smith in exchange for his testimony against Johnson
at Johnson’s trial. Thereafter, Smith obtained more information from Johnson
and provided it to the Prosecutor’s Office. Johnson was convicted as set out
above following a jury trial.
Johnson I, at pp. 2-4.
II. JOHNSON’S CLAIMS
Johnson’s habeas claims are these: 1) he was denied the effective assistance of trial
counsel for failure to: a) timely move to suppress two pieces of wood found during a warrantless
search; b) object to the admission of the wooden boards when they had been tampered with; and
c) investigate Leon Smith’s name; 2) he was denied the effective assistance of appellate counsel
for failure to challenge a warrantless search and seizure at his home; 3) the prosecutor committed
prosecutorial misconduct and; 3) his sentence violates Blakely v. Washington, 542 U.S. 296
III. APPLICABLE LAW
Scope of Review
This habeas action is brought pursuant to 28 U.S.C. § 2254(a). “A necessary predicate
for the granting of federal habeas relief [to a petitioner] is a determination by the federal court
that [his or her] custody violates the Constitution, laws, or treaties of the United States.” Rose
vs. Hodges, 423 U.S. 19, 21 (1975). The scope of federal habeas review is limited. Wilson v.
Corcoran, 131 S. Ct. 13, 16 (2010) (“[I]t is only noncompliance with federal law that renders a
State’s criminal judgment susceptible to collateral attack in the federal courts. The habeas
statute unambiguously provides that a federal court may issue the writ to a state prisoner ‘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). And we have repeatedly held that federal habeas corpus relief does
not lie for errors of state law. It is not the province of a federal habeas court to reexamine statecourt determinations on state-law questions.”) (some internal citations and quotations omitted).
The Antiterrorism and Effective Death Penalty Act of 1996
The provisions of the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), codified 28 U.S.C. § 2241(c)(3), et seq., govern this case because Johnson filed his
petition after the AEDPA’s effective date. See Lindh v. Murphy, 521 U.S. 320, 336 (1997).
Recognizing that state courts are no less experienced than federal courts in
dealing with claims of ineffective assistance of counsel, Burt v. Titlow, 571 U.S. –
–––, 134 S. Ct. 10, 15–16, 187 L.Ed.2d 348, 2013 WL 5904117 at *4 (U.S. Nov.
5, 2013), federal law erects a high deferential standard . . . for claims that a state
court erred. Federal habeas relief is available only if the state court’s decision
“was contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United States,” or “was
based on a [sic] unreasonable determination of the facts in light of the evidence
presented in the State court proceedings.” 28 U.S.C. § 2254(d)(1) and (2); see
also Metrish v. Lancaster, 133 S. Ct. 1781, 1786 (2013).
Bailey v. Lemke, 735 F.3d 945, 949 (7th Cir. 2013). As to claims which the state courts decided
on the merits, the AEDPA bars relitigation of the claims except in the foregoing three
The decision made by a state court is deemed to be contrary to clearly
established federal law “‘if the state court applies a rule different from the governing law set
forth in [Supreme Court] cases, or if it decides a case differently than [the Supreme Court has]
done on a set of materially indistinguishable facts.’” Emerson v. Shaw, 575 F.3d 680, 684 (7th
Cir. 2009) (quoting Bell v. Cone, 535 U.S. 685, 694 (2002)). The decision by a state court is
deemed to involve an unreasonable application of clearly established federal law “‘if the state
court correctly identifies the governing legal principle from [Supreme Court] decisions but
unreasonably applies it to the facts of the particular case.’” Emerson, 575 F.3d at 684 (quoting
Bell, 535 U.S. at 694). “Under § 2254(d)(2), a decision involves an unreasonable determination
of the facts if it rests upon fact-finding that ignores the clear and convincing weight of the
evidence.” Goudy v. Basinger, 604 F.3d 394, 399–400 (7th Cir. 2010) (citing Ward v. Sternes,
334 F.3d 696 (7th Cir. 2003)).
A state court’s factual determinations are presumed correct on federal habeas
review. See 28 U.S.C. § 2254(e)(1). A habeas petitioner may rebut this
presumption only with clear and convincing evidence. See Warren v. Smith, 161
F.3d 358, 360–61 (6th Cir. 1998). A petitioner’s challenge to a state court
decision based on a factual determination under § 2254(d)(2) will not succeed
unless the state court committed an “unreasonable error,” and § 2254(e) (1)
provides the mechanism for proving unreasonableness. See Ward v. Sternes, 334
F.3d 696, 703–04 (7th Cir. 2003).
Lee v. Zatecky, 1:12-cv-451-JMS-DML, 2013 WL 3936216 *3 (S.D. Ind. July 30, 2013).
As explained by the Supreme Court, the AEDPA “places a new constraint on the power
of a federal habeas court to grant a state prisoner’s application for a writ of habeas corpus with
respect to claims adjudicated on the merits in state court.” Williams v. Taylor, 529 U.S. 362, 412
(2000); see also Miller–El v. Cockrell, 537 U.S. 322, 337 (2003) (“Statutes such as AEDPA have
placed more, rather than fewer, restrictions on the power of federal courts to grant writs of
habeas corpus to state prisoners.”). “The petitioner carries the burden of proof.” Cullen v.
Pinholster, 131 S. Ct. 1388, 1398 (2011). “Under § 2254(d), a habeas court must determine
what arguments or theories supported or, as here, could have supported, the state court’s
decision; and then it must ask whether it is possible fairminded jurists could disagree that those
arguments or theories are inconsistent with the holding in a prior decision of this Court.
Harrington v. Richter, 131 S. Ct. 770, 786 (2011).
Ineffective Assistance of Counsel
Johnson’s first claims focus on the performance of his counsel—at the guilt phase of his
trial and in his direct appeal. This is hardly surprising because complaining about a lawyer’s
performance after the fact is “a favorite tactic of an unsuccessful criminal defendant,” Ford v.
Israel, 701 F.2d 689, 692 (7th Cir. 1983), and this case is no exception.
We have observed in the past that criminal defendants frequently “demonize”
their lawyers. “If we are to believe the briefs filed by appellate lawyers, the only
reasons defendants are convicted is the bumbling of their predecessors. But
lawyers are not miracle workers. Most convictions follow ineluctably from the
defendants’ illegal deeds.”
United States v. Farr, 297 F.3d 651, 658 (7th Cir. 2002) (quoting Burris v. Farley, 51 F.3d 655,
662 (7th Cir. 1995)).
Strickland v. Washington
The Sixth Amendment guarantees a criminal accused the right to assistance of counsel,
and “the right to counsel is the right to the effective assistance of counsel.” McMann v.
Richardson, 397 U.S. 759, 771 n.14 (1970). This means “representation that does not fall ‘below
an objective standard of reasonableness in light of prevailing professional norms.’” Bobby v.
Van Hook, 558 U.S. 4, 16 (2009). This guarantee exists “in order to protect the fundamental right
to a fair trial.” Strickland v. Washington, 466 U.S. 668, 684 (1984).
The benchmark for judging any claim of ineffectiveness must be whether counsel’s
conduct so undermined the proper functioning of the adversarial process that the trial cannot be
relied on as having produced a just result.” Id. at 686. This standard requires a two-part inquiry.
“To prevail on an ineffective-assistance[-]of-counsel claim under Strickland, a petitioner must
demonstrate that his counsel’s assistance was objectively unreasonable and resulted in a
substantial risk of prejudice.” Brown v. Finnan, 598 F.3d 416, 419 (7th Cir. 2010).
Deficient performance is “measured against an objective standard of reasonableness,
under prevailing professional norms.” Rompilla v. Beard, 545 U.S. 374, 380 (2005) (citations
omitted). In making this determination, the court considers “the reasonableness of counsel’s
conduct in the context of the case as a whole, viewed at the time of the conduct . . . .” United
States v. Lindsey, 157 F.3d 532, 534–35 (7th Cir. 1998); see also Hough v. Anderson, 272 F.3d
878, 891 (7th Cir. 2001) (holding that the court must consider the totality of the evidence before
the judge). There is a strong presumption that “any decisions by counsel fall within a wide range
of reasonable trial strategies.” Lindsey, 157 F.3d at 534-35. “To state the obvious: the trial
lawyers, in every case, could have done something more or something different. So, omissions
are inevitable. But, the issue is not what is possible or ‘what is prudent or appropriate, but only
what is constitutionally compelled.’” Chandler v. United States, 218 F.3d 1305, 1313 (11th Cir.
2000) (quoting Burger v. Kemp, 483 U.S. 776, 794 (1987)). “There are countless ways to
provide effective assistance in any given case.” Strickland, 466 U.S. at 689. There comes a
point where a defense attorney will reasonably decide that another strategy is in order, thus
“mak[ing] particular investigations unnecessary.” Id. at 691.
The second Strickland prong is prejudice. To satisfy this element, the petitioner “must
show that there is a reasonable probability that, but for counsel’s errors, the result of the
proceeding would have been different, such that the proceedings were fundamentally unfair or
unreliable. A reasonable probability is defined as one that is sufficient to undermine confidence
in an outcome.”
Blake v. United States, 723 F.3d 870, 878–79 (7th Cir. 2013) (internal
quotations and citations omitted); see also Rodriguez v. United States, 286 F.3d 972, 983 (7th
Cir. 2002) (to establish prejudice under the second prong, “the unprofessional errors of counsel
must be so egregious ‘that the trial was rendered unfair and the verdict rendered suspect.’”)
The foregoing outlines the straightforward features of Strickland’s two-prong test. In the
context of a case such as Johnson presents, however, the AEDPA raises the bar. “The standards
created by Strickland and § 2254(d) are both ‘highly deferential,’ and when the two apply in
tandem, review is ‘doubly’ so.” Harrington v. Richter, 131 S. Ct. 770, 788 (2011) (internal and
end citations omitted). “When § 2254(d) applies, the question is not whether counsel’s actions
were reasonable. The question is whether there is any reasonable argument that counsel satisfied
Strickland’s deferential standard.” Id.
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, 129 S. Ct. 1411, 1420 (2009) (internal citations and quotations omitted).
In applying AEDPA’s “difficult to meet . . . and highly deferential standard,” we must give the
Indiana courts’ decisions “the benefit of the doubt.” Cullen v. Pinholster, 131 S. Ct. 1388, 1398
(2011) (internal quotations and citations omitted).
Johnson’s ineffective assistance of counsel claims were presented to the Indiana state
courts in Johnson II. The Indiana Court of Appeals recognized and recited the correct Strickland
standard. Id. at p. 6.
Johnson claims that counsel rendered ineffective assistance by failing to investigate Leon
Smith’s real name. The Indiana Court of Appeals reviewed this issue and explained:
At trial, Johnson’s cellmate testified that his name was Leon Smith, but he also
admitted that he has used five or six aliases in the past, including the alias of
Brian Johnson. Smith/Johnson also testified that he is a convicted robber and had
pending Class D felony charges against him. He stated that he agreed to testify
against Johnson in exchange for the State’s promise to dismiss the pending Class
D felony charges.
Despite the fact that Smith/Johnson’s own testimony reflected poorly on
his credibility, Johnson claims that if trial [counsel] had investigated
Smith/Johnson’s true identity, “the jury would have learned that Smith/Johnson
was lying even about his real name.” Appellant’s Br. at 11. Because the jury was
well aware that Smith/Johnson had used several aliases, we cannot conclude that
Johnson was prejudiced because his trial counsel failed to discover that his
cellmate’s legal name was Brian Johnson and not Leon Smith. Moreover, in its
closing argument, the State informed the jury that they could disregard
Smith/Johnson’s testimony because “he doesn’t add anything to this case that’s
not proven by other means.” Trial Tr. p. 445.
For all of these reasons, we conclude that Johnson did not suffer any
prejudice from trial counsel’s alleged deficient performance, and therefore, his
trial counsel was not ineffective.
Johnson II. at p. 10. There was in this analysis no decision “contrary to” clearly established
federal law as determined by the Supreme Court of the United States. Similarly, this decision—
in which the Indiana Court of Appeals concluded that Johnson had failed to show prejudice—
was not an unreasonable application of Strickland because the Indiana Court of Appeals “took
the constitutional standard seriously and produced an answer within the range of defensible
positions.” Mendiola v. Schomig, 224 F.3d 589, 591 (7th Cir. 2000).
Johnson’s second specification of ineffective assistance of counsel at the guilt phase is
that counsel was ineffective by not timely moving to suppress two pieces of wood found during a
warrantless search and not objecting to the admission of the wooden boards when they had been
tampered with. “When the claim of ineffective assistance is based on counsel’s failure to present
a motion to suppress, [the Seventh Circuit] [has] required that a defendant prove the motion was
meritorious.” United States v. Cieslowski, 410 F.3d 353, 360 (7th Cir. 2005) (citing Owens v.
United States, 387 F.3d 607, 610 (7th Cir. 2004); United States v. Stewart, 388 F.3d 1079, 1084
(7th Cir. 2004)). “If there was no underlying constitutional violation, a motion to suppress
would have been futile and counsel could not be viewed as ineffective for failing to present such
a motion.” A.M. v. Butler, 360 F.3d 787, 795 (7th Cir. 2004) (citing Strickland, 466 U.S. at 686).
Here, the Indiana Court of Appeals reviewed Johnson’s claims and explained:
During Johnson’s trial, Detective Gullion testified that he returned to Johnson’s
home after the shooting without a search warrant, and during the warrantless
search he seized the broken pieces of wood. Johnson also argues that counsel was
ineffective for failing to object to the admission of the wooden boards because
they had been tampered with. Specifically, Johnson alleges that law enforcement
officers moved the boards, and “it would have been very easy for blood to have
gotten on the board through a transfer from the blood stain on the floor.”
Appellant’s Br. at 10.
The State used this evidence to argue that the injury to the back of [sic]
Tamnika’s head was caused by blunt force trauma and hypothesized that Johnson
must have struck Tamnika with the broken wooden board. Specifically, the State
The two inch gash at the back of her head that caused this much
bleeding. It wasn’t an old wound. It was a new one and you heard Dr.
Radentz tell you it wasn’t caused by falling on this carpet. It was caused
by blunt force trauma. . . . Is this an accident? This is no accident. This
is taking a board and bashing it on the back of your girlfriend’s head just
before you plow her down with two different guns. That’s what this is.
This isn’t an accident. Why, we don’t know.
Trial Tr. p. 427. In response, trial counsel argued that Tamnika’s blood was likely
found on the board because of the amount of blood in the bedroom, the movement
of her body by emergency medical personnel, and the carelessness of law
enforcement personnel who stepped in the blood at the scene. Id. at 436. Counsel
also noted that there was no evidence of skin or hair follicles on the board and no
evidence of wood splinters in the laceration on Tamnika’s head. Id.
Trial counsel failed to file a motion to suppress but did move to exclude the blood
stained pieces of wood and any other evidence obtained during the warrantless
search. The motion was denied, and counsel did not contemporaneously object to
the admission of the exhibits at trial. Assuming for the sake of argument that trial
counsel’s performance was deficient when he failed to either file a motion to
suppress or object to the admission of the exhibits during trial, we cannot
conclude that Johnson was prejudiced by the allegedly deficient performance.
The admission of the blood-stained pieces of wood certainly cast doubt on
Johnson’s claim of mistake of fact. But the other overwhelming evidence
supporting his murder convictions renders his claim that he thought Tamnika was
an intruder “implausible and incredible.” See Appellant’s app. p. 66.
The State presented evidence that Tamnika suffered blunt force trauma to her
head, and that she was shot three times. By Johnson’s own admission, he shot at
Tamnika multiple times with a 9 millimeter handgun, and then “crawled into [his]
closet, grabbed [his] rifle…and shot from the closet.” Trial Tr. p. 377. The State
presented evidence that Tamnika was likely laying on the ground when she was
shot with the rifle. Johnson admitted that he did not try to render any aid to
Tamnika after she was shot. Id. at 398.
Johnson also testified that in the eight months he lived at the residence it had not
been burglarized, and the house had a surveillance system with cameras at the
front door and an alarm. Johnson stated that the alarm was activated and the
doors were locked. Id. at 388-89. Despite his home’s security system, Johnson
testified that when he heard the cracking sound in the hallway, he grabbed the
handgun from the nightstand next to the bed and immediately started shooting.
No reasonable person could believe that Johnson would not have at least checked
the bed he was sleeping in to determine whether his pregnant girlfriend and twoyear old son remained in the bed with him before he started shooting at the
bedroom door. To the contrary, the evidence presented leads only to the
conclusion that Johnson intended to kill Tamnika when he shot her multiple times
with two different firearms. For these reasons, Johnson was not prejudiced by his
trial counsel’s failure to file a motion to suppress and or object to the admission of
the two bloodstained pieces of wood.
Johnson II, pp 7-9 (noting the post-conviction court’s conclusion that the evidence would have
been admissible under the inevitable discovery exception to the exclusionary rule because
Detective Gullion later obtained a search warrant). Again, the Indiana Court of Appeals took the
constitutional standard seriously and produced an answer within the range of defensible
positions. Because this Court cannot find that the Indiana Court of Appeals “unreasonably
applie[d] [the Strickland standard] to the facts of the case,” Johnson’s claim of ineffective
assistance of counsel at trial fails to support an award of habeas corpus relief. Murrell v. Frank,
332 F.3d 1102, 1111 (7th Cir. 2003) (citing Bell v. Cone, 535 U.S. 685, 694 (2002)).
Neither the Indiana Court of Appeals’ methodology nor its decision was an objectively
unreasonable application of Strickland’s performance prong or its prejudice prong. Because
“only a clear error in applying Strickland’s standard would support a writ of habeas corpus,”
Holman v. Gilmore, 126 F.3d 876, 882 (7th Cir. 1997) (citations omitted), and because no such
clear error – and no error at all – occurred here, Johnson is not entitled to federal habeas relief
based on counsel’s failure to move for suppression of the wood found during a warrantless
search and failure to object to the admission of the wooden boards.
The right to the effective assistance of counsel extends to a direct appeal. Page v. Frank,
343 F.3d 901, 909 (7th Cir. 2003). Johnson claims that he was denied the effective assistance of
counsel in Johnson I when counsel failed to challenge a warrantless search and seizure at his
home. The standard for judging a claim of ineffective assistance of counsel is the same for both
trial and appellate lawyers. Matire v. Wainwright, 811 F.2d 1430, 1435 (11th Cir. 1987). An
appellate counsel’s performance is deficient if he or she fails to argue an issue that is both
obvious and clearly stronger than the issues raised. Lee v. Davis, 328 F.3d 896, 900-01 (7th Cir.
The failure of appellate counsel to raise an issue on appeal requires the court to
compare the issue not raised in relation to the issues that were raised; if the issue
that was not raised is ‘both obvious and clearly stronger’ than the issues raised,
the appellate counsel’s failure to raise the neglected issue is objectively deficient.
Sanders v. Cotton, 398 F.3d 572, 585 (7th Cir. 2005). Prejudice is established if the issue not
raised “may have resulted in a reversal of the conviction or an order for a new trial.” Lee, 328
F.3d at 901.
The Indiana Court of Appeals reviewed Johnson’s ineffective assistance of
appellate counsel challenge and explained:
In this case, if we assume the detective’s warrantless search was unlawful,[FN2]
we cannot conclude that admission of the broken pieces of wood constitutes
fundamental error. The ultimate issue the jury was asked to resolve in this case
was whether Johnson deliberately killed Tamnika or whether she was shot
because he mistook her for an intruder. The pieces of wood were admitted to
support the State’s hypothesis that Johnson and Tamnika had fought before he
shot her and he struck her in the head with the wooden board causing it to break.
It was undisputed that Tamnika suffered a laceration to her head likely caused by
blunt force trauma. If the boards had not been admitted at trial, the remaining
evidence, i.e. the laceration to Tamnika’s head and the manner of the shooting,
would be more than enough evidence to support Johnson’s conviction for murder.
Therefore, appellate counsel would not have prevailed had he raised the argument
that admission of the broken pieces of wood constituted fundamental error.
Because the unraised issue was not “clearly stronger’ than the issues appellate
counsel raised in Johnson’s direct appeal, we conclude that Johnson was not
subjected to ineffective assistance of appellate counsel.
Johnson II, pp. 12-13.
The Indiana Court of Appeals carefully applied Strickland to the contention that appellate
counsel was ineffective for failing to appeal the warrantless seizure of the broken wood and that
the admission of the broken pieces of wood was fundamental error. By finding that no such error
occurred, the Indiana Court of Appeals then reasonably concluded that Johnson’s counsel in his
direct appeal had not rendered deficient performance by failing to include the warrantless seizure
of the broken pieces of wood as asserted error at trial. Hough v. Anderson, 272 F.3d 878, 898
n.8 (7th Cir. 2001) (“It is not deficient performance to fail to raise an argument with no real
chance of success.”); Freeman v. Attorney Gen., 536 F.3d 1225, 1233 (11th Cir. 2008) (“A
lawyer cannot be deficient for failing to raise a meritless claim . . . .”); Stone v. Farley, 86 F.3d
712, 717 (7th Cir. 1996) (“Failure to raise a losing argument, whether at trial or on appeal, does
not constitute ineffective assistance of counsel.”).
The United States Supreme Court has reminded courts exercising federal habeas
jurisdiction that “[s]urmounting Strickland’s high bar is never an easy task.” Premo v. Moore,
131 S. Ct. 733, 739 (2011). “[T]he Strickland standard must be applied with scrupulous care,
lest ‘intrusive post-trial inquiry’ threaten the integrity of the very adversary process the right to
counsel is meant to serve.” Id. at 740 (quoting Strickland, 466 U.S. at 689–90). The deficient
performance standard is rigorous. “Experienced advocates since time beyond memory have
emphasized the importance of winnowing out weaker arguments on appeal.” Jones v. Barnes,
463 U.S. 745, 751 (1983). Therefore, absent contrary evidence, “we assume that appellate
counsel’s failure to raise a claim was an exercise of sound appellate strategy.” Roe v. Delo, 160
F.3d 416, 418 (8th Cir. 1998) (quotation omitted).
Because this Court cannot find that the Indiana Court of Appeals “unreasonably applie[d]
[the Strickland standard] to the facts of the case,” Johnson’s claim of ineffective assistance of
counsel on appeal does not support the award of habeas corpus relief with respect to the omission
of a claim that the admission of the broken pieces of wood was fundamental error in Johnson I.
Murrell v. Frank, 332 F.3d at 1111 (citing Bell v. Cone, 535 U.S. 685, 694 (2002)).
Next, Johnson claims that there was prosecutorial misconduct at trial based on the
testimony of Leon Smith and the tampering of the broken wooden boards. The Indiana Court of
Appeals reviewed this issue at post-conviction and determined that Johnson did not demonstrate
that his prosecutorial misconduct claims were not available at trial or direct appeal and
accordingly, they will not be considered as freestanding claims at post-conviction. Johnson II,
pp. 13-14. This was an entirely normative application of Indiana law on the subject. See
Stephenson v. State, 864 N.E.2d 1022, 1029 (Ind. 2007) (holding that freestanding claims of
trial error, fundamental or otherwise, are not available in post-conviction proceedings).
“It is the rule in this country that assertions of error in criminal proceedings must first be
raised in state court in order to form the basis for relief in habeas. Claims not so raised are
considered defaulted.” Breard v. Greene, 523 U.S. 371, 375 (1998) (citing Wainwright v. Sykes,
433 U.S. 72 (1977)). Procedural default “occurs when a claim could have been but was not
presented to the state court and cannot, at the time that the federal court reviews the habeas
petition, be presented to the state court.” Resnover v. Pearson, 965 F.2d 1453, 1458 (7th Cir.
1992), cert. denied, 508 U.S. 962 (1993). The independent and adequate state ground doctrine
“applies to bar federal habeas when a state court declined to address a prisoner’s federal claims
because the prisoner had failed to meet a state procedural requirement.” Coleman v. Thompson,
501 U.S. 722, 729-30 (1991) (emphasis added). Once again, the Indiana Court of Appeals’
finding that Johnson procedurally defaulted his prosecutorial misconduct claim is an independent
and adequate state ground that precludes federal habeas review of Johnson’s claim.
Johnson’s final claim is that his sentence runs afoul of the sentencing proscriptions set
forth in Blakely v. Washington, 542 U.S. 296 (2004) and Apprendi v. New Jersey, 530 U.S. 466
(2000). Johnson argues the 110-year sentence imposed by the state court is inappropriate.
Specifically, Johnson argues that he “did not have any prior convictions and the trial court
aggravated his sentences and ran them consecutively based upon four aggravating factors which
were not submitted to a jury and proven beyond a reasonable doubt.”
Blakely held that “any fact that increases the penalty for a crime beyond the statutory
maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 542 U.S. at 301
(quoting Apprendi at 490 (2000)). The “statutory maximum” is initially the presumptive term
and is the “maximum sentence the judge may impose solely on the basis of facts reflected in the
jury verdict or admitted by the defendant.” Id. at 303 (emphasis in original). Here, Johnson
received the presumptive sentence on each count, not the maximum allowed under the statute.
Imposing the 55-year presumptive penalty did not increase Johnson’s penalty beyond the
statutory maximum for each of the murder convictions. See State v. Natale, 184 N.J. 458 (N.J.
2005) (concluding that since “[o]ur Code provisions make clear that, before any judicial
factfinding, the maximum sentence that can be imposed based on a jury verdict or guilty plea is
the presumptive term,” and since “the ‘statutory maximum’ for Blakely is the presumptive
sentence,” the presumptive terms should be severed from the statute so that the relevant statutory
maximum is the top of the sentencing range for the crime charged); Smylie v. State, 823 N.E.2d
679, 683-85 (Ind. 2005) (because the trial court “must engage in judicial fact-finding during
sentencing if a sentence greater than the presumptive fixed term is to be imposed,” the
sentencing scheme violates Blakely, and the appropriate remedy is for the jury to find facts of
Similarly, the imposition of two consecutive fifty-five year terms did not increase the
penalties for the murder convictions.
This is permitted under the Apprendi regimen.
Almendarez-Torres v. United States, 523 U.S. 224 (1998).
Johnson’s conviction and sentence withstood challenge in the Indiana courts, and thus a
presumption of constitutional regularity attaches to it. See Farmer v. Litscher, 303 F.3d 840, 845
(7th Cir. 2002) (citing Parke v. Raley, 506 U.S. 20, 29-30 (1992)); Milone v. Camp, 22 F.3d 693,
698-99 (7th Cir. 1994) (“Federal courts can grant habeas relief only when there is a violation of
federal statutory or constitutional law”).1 As the foregoing discussion demonstrates, this Court’s
view is that he received all that the Constitution requires.
For a trial to be constitutionally sound requires . . . a trial where the prosecutor
must prove all elements of a crime beyond a reasonable doubt in order to convict;
where the prosecutor adheres to certain rules of conduct that guarantee a fair trial
and a proper consideration of the defendant’s theories and supporting evidence;
where the jurors consider only evidence adduced by the parties and that a
defendant has had an opportunity to rebut; and where a defendant enjoys the right
to cross-examine adverse witnesses.
Gall v. Parker, 231 F.3d 265, 277-78 (6th Cir. 2000).
This Court has carefully reviewed the state record in light of Johnson’s claims and has
given such consideration to those claims as the limited scope of its review in a habeas corpus
proceeding permits. The Supreme Court has clarified that the AEDPA standard of review is
extremely narrow, and is intended only as “a ‘guard against extreme malfunctions in the state
criminal justice systems,’ not a substitute for ordinary error correction through appeal[.]” Ryan
v. Gonzales, 133 S. Ct. 696, 708 (2013) (quoting Harrington v. Richter, 131 S. Ct. 770, 786
(2011)). A federal habeas court may overturn a state court’s application of federal law only if it
is so erroneous that “there is no possibility fairminded jurists could disagree that the state court’s
decision conflicts with . . . [United States Supreme Court] precedents.” Nevada v. Jackson, 133
S. Ct. 1990, 1992 (2013) (citing Harrington, 131 S. Ct. at 786). “This standard . . . is ‘difficult to
meet’: To obtain habeas corpus relief from a federal court, a state prisoner must show that the
challenged state-court ruling rested on ‘an error well understood and comprehended in existing
law beyond any possibility for fairminded disagreement.’” Metrish v. Lancaster, 133 S. Ct.
1781, 1786–87 (2013) (citing Harrington, 131 S. Ct. at 786–87).
Obviously, this is not a presumption related to the AEDPA, but is “the ‘presumption of regularity’ that attaches to
final judgments, even when the question is waiver of constitutional rights.” Parke v. Raley, 506 U.S. at 29 (citing
Johnson v. Zerbst, 304 U.S. 458, 464, 468 (1938)).
The Indiana Court of Appeals’ resolution of the claims Johnson has renewed in this
action for habeas corpus relief is consistent with, and a reasonable application of, the
constitutional standards established by the Supreme Court and contains a reasonable
determination of the facts in light of the evidence presented. “When the state court’s decision is
one of severally equally plausible outcomes, § 2254(d) forecloses federal habeas corpus relief.”
Bailey v. Lemke, 735 F.3d 945, 951 (7th Cir. 2013) (citing cases) (internal quotations omitted).
For the reasons explained above, therefore, the Petition for Writ of Habeas Corpus of
Robert Johnson is DENIED. Judgment consistent with this Entry shall now issue.
VI. CERTIFICATE OF APPEALABILITY
Having failed to make a substantial showing of denial of a constitutional right
puruant to Federal Rule of Appellate Procedure 22(b), Rule 11(a) of the Rules Governing ' 2254
proceedings, and 28 U.S.C. ' 2253(c), the Court finds Johnson has not shown that reasonable
jurists would find it “debatable whether [this court] was correct in itsprocedural ruling.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000). The Court therefore DENIES a certificate of appealability.
Hon. Tanya Walton Pratt, Judge
United States District Court
Southern District of Indiana
Joseph Martin Cleary
Kelly A. Miklos
OFFICE OF THE INDIANA ATTORNEY GENERAL
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?