Johnson v. White

Filing 34

MEMORANDUM AND OPINION & ORDER by Judge David J. Hale on 3/12/2018; The Findings of Fact, Conclusions of Law, and Recommendation of Magistrate Judge Colin Lindsay (D.N. 29) are ADOPTED in part and INCORPORATED by reference herein to the extent set fo rth above. Whites objection (D.N. 30) to Judge Lindsays report and recommendation is SUSTAINED. While the Court sustains this narrow objection, it does so without changing Judge Lindsays conclusion that Johnsons petition should be denied. Johnsons objection (D.N. 31) to Judge Lindsays report and recommendation is OVERRULED. A separate judgment will be issued this date.cc:counsel, Petitioner (ARM) Modified on 3/13/2018 (ARM).

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
LASHAWN JOHNSON,

Petitioner,

v.

Civil Action No. 3:14-cv-514-DJH-CHL

RANDY WHITE,

Respondent.
* * * * *
MEMORANDUM OPINION AND ORDER

LaShawn Johnson filed a petition for writ of habeas corpus under 28 U.S.C. § 2254.
(Docket No. 1) Respondent Randy White opposes Johnson’s petition. (D.N. 15) The Court
referred the matter to Magistrate Judge Colin Lindsay, who submitted Findings of Fact,
Conclusions of Law, and Recommendation. (D.N. 29) Judge Lindsay recommended that the
Court deny Johnson’s petition with prejudice and deny a certificate of appealability. (Id.,
PageID # 358)
recommendation.

White and Johnson timely filed objections to Judge Lindsay’s report and
(D.N. 30; D.N. 31)

While Johnson objects to Judge Lindsay’s

recommendation that his petition be denied (D.N. 31), White took “the unusual position” of
objecting to the favorable report to correct an oversight in failing to bring a Sixth Circuit case to
Judge Lindsay’s attention (D.N. 30). For the reasons set forth below, White’s objection will be
sustained, and Johnson’s objection will be overruled.

The Court will adopt in part Judge

Lindsay’s Findings of Fact, Conclusions of Law, and Recommendation and deny Johnson’s
habeas petition.
I.

BACKGROUND
A jury found Johnson guilty of first-degree robbery and first-degree burglary and

sentenced him to twenty-five years’ imprisonment. Johnson v. Commonwealth, 327 S.W.3d 501,

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505 (Ky. 2010). Johnson appealed to the Kentucky Supreme Court, which hears direct appeals
from circuit-court judgments imposing prison sentences of twenty years or more. See Ky. Const.
§ 110(2)(b); Johnson, 327 S.W.3d at 503. In his direct appeal, Johnson argued that the trial court
erred in refusing to instruct the jury on second-degree robbery and second-degree burglary and in
failing to hold an evidentiary hearing on his motion to suppress DNA evidence. Johnson, 327
S.W.3d at 503. The Kentucky Supreme Court rejected Johnson’s arguments and affirmed the
trial court’s judgment. Id.
Johnson then filed a motion to vacate, set aside, or correct the judgment against him
pursuant to Kentucky Rule of Criminal Procedure 11.42. Johnson v. Commonwealth, No. 2012CA-000320-MR, 2013 WL 1776029, at *1 (Ky. Ct. App. Apr. 26, 2013). As grounds for the
motion, Johnson asserted that his trial counsel was ineffective for failing to conduct an adequate
pretrial investigation, failing to prepare for trial, permitting unlawful DNA evidence to be
admitted at trial, and failing to ensure that the jury was properly instructed. Id. at *2. The trial
court denied the motion without an evidentiary hearing, and the Kentucky Court of Appeals
affirmed. Id. at *1, *5. Johnson filed a motion for discretionary review, which the Kentucky
Supreme Court denied. (D.N. 15-11, PageID # 277)
Johnson, who remains in state custody, has filed a pro se petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254. (D.N. 1) As grounds for his petition, Johnson alleges that
the state trial court refused to let the jury decide whether the weapon used in this case was a
“deadly weapon”; the court allowed illegally obtained DNA evidence to be submitted to the jury;
trial counsel refused to allow him to represent himself; counsel refused to ask certain questions
of the victim at trial; and counsel failed to object to perjury during the sentencing phase of his
trial. (Id., PageID # 5, 7-8, 10, 12)

2

This matter was referred to United States Magistrate Judge Colin Lindsay for Findings of
Fact, Conclusions of Law, and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). (D.N.
10, PageID # 40; D.N. 23)

Both White and Johnson filed objections to the report and

recommendation. (D.N. 30; D.N. 31) The Court reviews de novo the portions of the report and
recommendation to which objections are filed. See Walkup v. United States, No. 1:09-CR00026-TBR-HBB, 2016 WL 6780332, at *1 (W.D. Ky. Nov. 15, 2016).
II.

DISCUSSION
A.

Legal Standards

A district court “shall entertain an application for a writ of habeas corpus in behalf of a
person in custody pursuant to the judgment of a State court 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).
An application for a writ of habeas corpus . . . shall not be granted unless it
appears that—
(A) the applicant has exhausted the remedies available in the courts of the State;
or
(B)(i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of
the applicant.
§ 2254(b)(1). “An applicant shall not be deemed to have exhausted the remedies available in the
courts of the State, within the meaning of this section, if he has the right under the law of the
State to raise, by any available procedure, the question presented.” § 2254(c). “In order to
exhaust a claim, the petitioner ‘must “fairly present” his claim in each appropriate state court
(including a state supreme court with powers of discretionary review), thereby alerting that court
to the federal nature of the claim.’” Woolbright v. Crews, 791 F.3d 628, 631 (6th Cir. 2015)
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(quoting Baldwin v. Reese, 541 U.S. 27, 29 (2004)). “When a petitioner has failed to fairly
present his claims to the state courts and no state remedy remains, his claims are considered to be
procedurally defaulted.” Id. “If a petitioner’s claims are procedurally defaulted, they may not be
reviewed by a habeas court unless he can demonstrate ‘cause’ and ‘prejudice.’” Id. (quoting
McMeans v. Brigano, 228 F.3d 674, 680 (6th Cir. 2000)).
The Antiterrorism and Effective Death Penalty Act (AEDPA), which amended Section
2254(d), “requires ‘heightened respect’ for legal and factual determinations made by state
courts.” Chatman v. Litteral, No. 5:16-cv-00177-GNS-LLK, 2017 WL 4330370, at *3 (W.D.
Ky. Sept. 29, 2017) (quoting Herbert v. Billy, 160 F.3d 1131, 1134 (6th Cir. 1998)). The
AEDPA provides that
[a]n 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.
§ 2254(d). “Under the ‘contrary to’ clause, a federal habeas court may grant the writ if the state
court arrives at a conclusion opposite to that reached by th[e] [Supreme] Court on a question of
law or if the state court decides a case differently than th[e] [Supreme] Court has on a set of
materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412-13 (2000). “Under
the ‘unreasonable application’ clause, a federal habeas court may grant the writ if the state court
identifies the correct governing legal principle from th[e] [Supreme] Court’s decisions but
unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 413.

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B.

White’s Objection

Judge Lindsay concluded that Johnson procedurally defaulted two of his claims related to
ineffective assistance of counsel because he did not present them to the state courts or show good
cause for his failure to do so. (D.N. 29, PageID # 355, 358) White objected to Judge Lindsay’s
conclusion that Johnson failed to show good cause, on the basis of a recent Sixth Circuit decision
holding that there may be good cause to excuse procedural default of an ineffective-assistance
claim if the prisoner was unrepresented by counsel during the initial collateral-review proceeding
in state court.1 (D.N. 30, PageID # 359-60) That case, Woolbright, supra, reiterated prior
Supreme Court holdings that cause to excuse procedural default of a substantial ineffectiveassistance claim may be established where (1) state law bars or denies a petitioner the
meaningful opportunity to raise ineffective-assistance claims on direct appeal; and (2) the
petitioner was unrepresented (or lacked effective assistance of counsel) at his initial collateralreview proceeding. 791 F.3d at 631 (citing Trevino v. Thaler, 569 U.S. 413, 429 (2013) and
Martinez v. Ryan, 566 U.S. 1, 17 (2012)). While White asserts that Woolbright represents a
change in the law on procedural default (D.N. 30, PageID # 359), the court in that case simply
held that the Martinez/Trevino rule applied in Kentucky to ensure that defendants in this state
receive a meaningful opportunity to have their ineffective-assistance claims adjudicated on direct
appeal. 791 F.3d at 635-36.
Johnson was not represented by counsel during his initial collateral-review proceeding in
state court. See Johnson, 2013 WL 1776029, at *2. The Court will therefore sustain White’s
narrow objection to the extent it seeks to clarify that Johnson may be able to show cause under

1

White did not concede that his procedural-default defenses failed, however. Instead, he
asserted that, although Johnson could show cause for his procedural default on these two claims,
he could not show prejudice. (D.N. 30, PageID # 360)
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Martinez and Trevino for his procedural default, as he did not receive a meaningful opportunity
to raise his ineffective-assistance claims on direct appeal and lacked representation at his initial
collateral-review proceeding. See Blincoe v. White, No. 3:13-CV-00846-GNS-DW, 2015 WL
7571844, at *5 (W.D. Ky. Nov. 24, 2015) (acknowledging that the defendant was correct in
arguing that Martinez and Trevino applied to Kentucky’s post-conviction relief procedures so he
was able to show cause to excuse his procedural default). The Court notes, however, that its
conclusion here regarding cause does not change the outcome of this case for the reasons that
follow.
C.

Johnson’s Objection

Johnson sought habeas relief on five separate grounds. (See D.N. 1) The Court will
discuss each ground for habeas relief in turn.
1.

Ground One: Jury Instructions

First, Johnson argues that the trial court refused to let the jury decide whether the weapon
used in this case was a “deadly weapon.” (D.N. 1, PageID # 5) Judge Lindsay found that
Johnson sufficiently raised this argument to the trial court and the Kentucky Supreme Court,
exhausting his available state-court remedies.

(D.N. 29, PageID # 350)

However, Judge

Lindsay concluded that Johnson had not shown that the Kentucky Supreme Court’s decision
affirming the trial court’s jury instructions was contrary to, or an unreasonable application of,
clearly established federal law.

(Id., PageID # 352)

Johnson objects to the report and

recommendation, arguing that the trial judge’s instructions were contrary to Apprendi v. New
Jersey, 530 U.S. 466 (2000), as applied in Thacker v. Commonwealth, 194 S.W.3d 287 (Ky.
2006). (D.N. 31, PageID # 363)

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A criminal defendant is entitled to “a jury determination that [he] is guilty of every
element of the crime with which he is charged, beyond a reasonable doubt.” Apprendi, 530 U.S.
at 477. The Kentucky Supreme Court in Thacker applied Apprendi and concluded that the jury
must be allowed to determine whether a weapon is a “deadly weapon” where one of the charged
crime’s essential elements is being armed with a deadly weapon. 194 S.W.3d at 289-90.
In this case, the jury convicted Johnson of first-degree robbery and first-degree burglary.
Johnson, 327 S.W.3d at 505. Under Kentucky law,
[a] person is guilty of robbery in the first degree when, in the course of
committing theft, he uses or threatens the immediate use of physical force upon
another person with intent to accomplish the theft and when he:
(a) Causes physical injury to any person who is not a participant in the crime; or
(b) Is armed with a deadly weapon; or
(c) Uses or threatens the immediate use of a dangerous instrument upon any
person who is not a participant in the crime.
Ky. Rev. Stat. § 515.020(1). Kentucky statutes further provide that
[a] person is guilty of burglary in the first degree when, with the intent to commit
a crime, he knowingly enters or remains unlawfully in a building, and when in
effecting entry or while in the building or in the immediate flight therefrom, he or
another participant in the crime:
(a) Is armed with explosives or a deadly weapon; or
(b) Causes physical injury to any person who is not a participant in the crime; or
(c) Uses or threatens the use of a dangerous instrument against any person who is
not a participant in the crime.
§ 511.020(1). Thus, use of a deadly weapon is one of three alternative elements for first-degree
robbery and burglary. The trial court submitted to the jury the question of whether the weapon
was deadly. See Johnson, 327 S.W.3d at 507. Indeed, it instructed the jury on the elements of
first-degree robbery and burglary and issued an instruction defining “deadly weapon” using the
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language of the statute that defines that term. Id. at 507 n.14; see Ky. Rev. Stat. § 500.080(4).
The Kentucky Supreme Court affirmed the trial court’s judgment. Johnson, 327 S.W.3d at 512.
Johnson is correct that, in accordance with Apprendi and Thacker, the jury was required
to determine whether he used a deadly weapon. However, the trial court here allowed the jury to
make that determination. The Court therefore agrees with Judge Lindsay’s conclusion that
Johnson has failed to show that the Kentucky Supreme Court’s decision affirming the trial court
on this issue was either contrary to, or an unreasonable application of, clearly established federal
law.
2.

Ground Two: DNA Evidence

Second, Johnson argues that his constitutional rights were violated because DNA
evidence was illegally obtained and admitted against him at trial.

(D.N. 1, PageID # 7)

Specifically, Johnson argues that his blood was drawn without his consent and used to generate a
DNA profile that was entered into the Combined DNA Index System (CODIS) and later used to
link him to a drinking straw found at the scene of the crime. (Id.) Judge Lindsay concluded that
this claim was not cognizable in a federal habeas petition because Johnson already had an
opportunity for full and fair litigation of his Fourth Amendment claim, which the Kentucky
Supreme Court addressed on the merits. (D.N. 29, PageID # 353) Judge Lindsay therefore
recommended that the Court deny the habeas petition with respect to ground two. (Id.)
Johnson’s objection does not mention this ground for relief, so the Court assumes that he
does not object to this portion of the report and recommendation. The Court need not review a
magistrate judge’s factual or legal conclusions when no objection is made. See Thomas v. Arn,
474 U.S. 140, 150-52 (1985). Nevertheless, the Court has reviewed the record and agrees with
Judge Lindsay’s recommendation. The Supreme Court has held that “where the State has

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provided an opportunity for full and fair litigation of a Fourth Amendment claim, the
Constitution does not require that a state prisoner be granted federal habeas corpus relief on the
ground that evidence obtained in an unconstitutional search or seizure was introduced at his
trial.” Stone v. Powell, 428 U.S. 465, 481-82 (1976). The Kentucky Supreme Court’s decision
affirming the trial court in this case contains a lengthy discussion of Johnson’s motion to
suppress the DNA evidence. See Johnson, 327 S.W.3d at 508-12. Johnson has not shown that
he did not have an opportunity for full and fair litigation of his Fourth Amendment claim in state
court. Thus, the Court agrees with Judge Lindsay’s conclusion that federal habeas corpus relief
is not appropriate on this ground.
3.

Ground Three: Self-Representation

The remaining three grounds for relief in this case involve ineffective assistance of
counsel. Johnson first argues that his trial counsel was ineffective because he refused to inform
the court that Johnson wanted to represent himself and failed to request a hearing pursuant to
Faretta v. California, 422 U.S. 806 (1975), in order to determine whether Johnson knowingly
waived his right to counsel. (D.N. 1, PageID # 8) Judge Lindsay concluded that Johnson
procedurally defaulted this claim because he failed to exhaust his state-court remedies and could
not show cause for his failure to exhaust. (D.N. 29, PageID # 354-55) In his objection, Johnson
relies on Martinez and argues that he can show prejudice because his ineffective-assistance claim
is “substantial.” (D.N. 31, PageID # 363-64)
But Johnson did not raise this particular ineffective-assistance claim in state court. (See
D.N. 1, PageID # 9-10) He therefore failed to exhaust his state-court remedies with respect to
this claim. See Woolbright, 791 F.3d at 631. No state remedy remains because Kentucky’s rules
for post-conviction relief would not allow Johnson to bring another motion to assert this claim.

9

See Ky. R. Crim. P. 11.42(3) (“Final disposition of the [Rule 11.42] motion shall conclude all
issues that could reasonably have been presented in the same proceeding.”); Johnson, 2013 WL
1776029, at *1-2 (affirming lower court’s denial of Johnson’s first Rule 11.42 motion, which
raised multiple ineffective-assistance issues); see also Ky. R. Civ. P. 60.02 (providing relief from
a final judgment in certain circumstances); McQueen v. Commonwealth, 948 S.W.2d 415, 416
(Ky. 1997) (“Civil Rule 60.02 is not intended merely as an additional opportunity to relitigate the
same issues which could ‘reasonably have been presented’ by direct appeal or RCr 11.42
proceedings.”). Hence, the Court agrees with Judge Lindsay that Johnson has procedurally
defaulted this claim. See Woolbright, 791 F.3d at 631.
To overcome procedural default, Johnson must demonstrate “cause” and “prejudice.”
See id. As explained above, Johnson may be able to demonstrate cause for his default. See
supra Section III.B. But “[h]abeas petitioners must additionally show ‘actual prejudice’ to
excuse their default.” Jones v. Bell, 801 F.3d 556, 563 (6th Cir. 2015) (quoting Ambrose v.
Booker, 684 F.3d 638, 649 (6th Cir. 2012)). To determine prejudice, the Court “look[s] to the
record to determine if the outcome of the trial would have been different” absent counsel’s
errors. Id. “The ‘most important aspect to the inquiry is the strength of the case against the
defendant’ and whether a trial without errors would still have resulted in conviction.” Id.
(quoting Ambrose, 684 F.3d at 652).
Johnson asserts that the result of the proceeding would have been different absent
counsel’s errors because he would have been entitled to a new trial if the judge knew that he had
requested to represent himself both before trial and at trial. (D.N. 20, PageID # 321) Johnson
has not shown, however, that the outcome of the trial would have been different had he
represented himself. See Jones, 801 F.3d at 563-64; see also Kennedy v. Mackie, 639 F. App’x

10

285, 295 (6th Cir. 2016) (“[T]he fact that the trial court’s denial of a defendant’s right to selfrepresentation . . . creates an automatic right to a new trial . . . does not mean that the ‘actual and
eventual outcome of the trial’ would be different.”). Nor is there any basis here to believe that
Johnson would have defended himself better than his attorney. See Kennedy, 639 F. App’x at
295. Johnson asserts that he would have asked questions of the victim (D.N. 1, PageID # 8; D.N.
20, PageID # 317), but the record showed “overwhelming and uncontradicted evidence” of an
intruder causing physical injury to the victim. Johnson, 327 S.W.3d at 505, 508. Because
Johnson has failed to show actual prejudice resulting from his trial counsel’s alleged errors, this
ineffective-assistance claim is barred by the procedural-default doctrine. See Kennedy, 639 F.
App’x at 294-95; Jones, 801 F.3d at 564.
4.

Ground Four: Questioning the Victim

Johnson also argues that his trial counsel was ineffective in denying Johnson his right to
present a complete defense, to participate in his own defense, and to cross-examine his accusers.
(D.N. 1, PageID # 10) Specifically, Johnson asserts that he noted inconsistencies in the victim’s
testimony and wrote them down, along with questions that would perjure the victim, but counsel
refused to ask the questions. (Id.) Judge Lindsay concluded that Johnson had exhausted his
state-court remedies as to this issue but had not shown that the Kentucky Court of Appeals
decision affirming the trial court’s denial of this claim was contrary to, or an unreasonable
application of, clearly established federal law. (D.N. 29, PageID # 355-56) In his objection,
Johnson argues that his attorney had an obligation to investigate every piece of evidence. (D.N.
31, PageID # 364)
Although Johnson asserts in his petition that he did not exhaust his state-court remedies
with respect to this claim (D.N. 1, PageID # 10), the record shows that Johnson indeed raised this

11

ineffective-assistance argument in the Kentucky trial court and court of appeals (see D.N. 15-6,
PageID # 202; D.N. 15-7, PageID # 226). After the court of appeals ruled against him (D.N. 1510, PageID # 276), Johnson unsuccessfully sought discretionary review in the Kentucky
Supreme Court (D.N. 15-11). The Court thus agrees with Judge Lindsay that Johnson exhausted
his state-court remedies with respect to this claim.
To obtain relief, Johnson must also show that the decision of the Kentucky courts was
contrary to, or involved an unreasonable application of, clearly established federal law according
to the Supreme Court. See 28 U.S.C. § 2254(d). In his brief to the Kentucky Court of Appeals,
Johnson argued that his trial counsel was ineffective for failing to secure medical records that
would have showed that the victim was not injured and failing to properly cross-examine the
Commonwealth’s witnesses (including the victim) who testified as to the victim’s injuries. (D.N.
15-7, PageID # 225-26) The Kentucky Court of Appeals applied the correct legal principle from
Strickland v. Washington, 466 U.S. 668 (1984), to Johnson’s claim. (D.N. 15-10, PageID # 27071) The court determined that trial counsel’s performance was not deficient in light of the fact
that three individuals testified that the victim was injured. (Id., PageID # 271-72) One witness
observed the victim bleeding from the face; a detective said that the victim had an open wound
on his head; and the victim claimed that he was provided crutches for a sprained ankle. (Id.,
PageID # 272)

The court concluded that, under Strickland, Johnson had not shown that

counsel’s pretrial investigation or trial defense fell below “an objective standard of
reasonableness.” (Id., PageID # 273)
In sum, the Court agrees with Judge Lindsay that Johnson has not shown that the
Kentucky Court of Appeals “arrive[d] at a [legal] conclusion opposite to that reached by th[e]
[Supreme] Court,” “decide[d] a case differently than th[e] [Supreme] Court” on similar facts, or

12

“identifie[d] the correct governing legal principle from th[e] [Supreme] Court’s decisions but
unreasonably applie[d] [it] to the facts.” See Williams, 529 U.S. at 412-13. The Court will
therefore deny habeas relief on this ground.
5.

Ground Five: Sentencing

Johnson finally argues that his trial counsel was ineffective for failing to investigate the
sentencing laws in relation to his case and failing to object to perjury on the part of the probation
and parole officer during the sentencing phase of his trial. (D.N. 1, PageID # 12) Judge Lindsay
concluded that this claim was barred by the procedural-default doctrine because Johnson failed
to raise it in state court and did not show good cause to excuse that failure. (D.N. 29, PageID #
358) In his objection, Johnson argues that he in effect had no representation during the penalty
phase because his trial counsel led the jury to believe lies from the prosecution as well as from
probation and parole. (D.N. 31, PageID # 364-65)
Johnson did not raise this ineffective-assistance claim in state court. (See D.N. 1, PageID
# 13) He therefore failed to exhaust his state-court remedies with respect to this claim. See
Woolbright, 791 F.3d at 631. Again, no state remedy remains because Kentucky rules disallow
another motion to assert this claim. See Ky. R. Crim. P. 11.42(3) (“Final disposition of the [Rule
11.42] motion shall conclude all issues that could reasonably have been presented in the same
proceeding.”); Johnson, 2013 WL 1776029, at *1-2 (affirming lower court’s denial of Johnson’s
first Rule 11.42 motion, which raised multiple ineffective-assistance issues); see also Ky. R. Civ.
P. 60.02 (providing relief from a final judgment in certain circumstances); McQueen, 948
S.W.2d at 416 (“Civil Rule 60.02 is not intended merely as an additional opportunity to relitigate
the same issues which could ‘reasonably have been presented’ by direct appeal or RCr 11.42

13

proceedings.”). The Court agrees that Johnson has procedurally defaulted this claim. See
Woolbright, 791 F.3d at 631.
Johnson must demonstrate “cause” and “prejudice” to overcome procedural default. See
id. As explained above, Johnson may be able to demonstrate cause for his default. But Johnson
must also show actual prejudice. See Jones, 801 F.3d at 563; Edmonds v. Smith, No. 3:15-cv00859-CRS, 2017 WL 3431970, at *30 (W.D. Ky. Apr. 21, 2017). Johnson must show more
than a mere possibility of prejudice; he must establish “a reasonable probability that the outcome
of the [sentencing] would have been different” absent counsel’s ineffective assistance. Edmonds,
2017 WL 3431970, at *30; see Jamison v. Collins, 291 F.3d 380, 386 (6th Cir. 2002).
Johnson asserts that he was prejudiced because the jury decided his sentence based on
lies from his own counsel, the prosecution, and the probation and parole officer. (D.N. 20,
PageID # 322) Specifically, Johnson asserts that there is a reasonable probability that the jury
would have given him the minimum possible sentence had counsel not allowed it to believe that
he could receive “work for time” credit. (Id., PageID # 323) He further asserts that this is
plausible because the jury did not recommend the maximum sentence for his robbery and
burglary convictions. (Id.)
The jury sentenced Johnson to twenty-five years’ imprisonment on each charge, to be
served concurrently. See Johnson, 327 S.W.3d at 505. As discussed above, Johnson was
convicted of first-degree robbery and first-degree burglary. Both crimes are Class B felonies
under Kentucky law that carry a statutory minimum penalty of ten years each. See Ky. Rev. Stat.
§§ 515.020(2), 511.020(2), 532.060(2)(b). The jury in this case, however, found Johnson to be a
first-degree persistent felony offender. See Johnson, 327 S.W.3d at 505. When a defendant is
found to be a first-degree persistent felony offender in Kentucky, the jury must fix a sentence as

14

authorized under Ky. Rev. Stat. §§ 532.080(1) and 532.080(6). The relevant statute provides that
if the offense for which the defendant presently stands convicted is a Class B felony, he shall be
sentenced to a term of imprisonment not less than twenty years nor more than fifty years or life
imprisonment. Ky. Rev. Stat. § 532.080(6)(a). The jury sentenced Johnson to twenty-five years,
just five years over the statutory minimum. See Johnson, 327 S.W.3d at 505.
Johnson argues that but for his attorney’s mistake, the jury would have sentenced him to
the minimum twenty years instead of twenty-five years. (D.N. 20, PageID # 323) Johnson
asserts that the probation and parole officer testified that he could get seven days per month in
“work for time” credit toward his sentence. (D.N. 1, PageID # 12) White asserts that the officer
testified that Johnson could get only four days per month off of his sentence. (D.N. 15, PageID #
75)

Either way, the testimony was incorrect, as the statute that provides for work credit

expressly excludes prisoners serving sentences for violent offenses, and first-degree robbery
qualifies as a violent offense. See Ky. Rev. Stat. §§ 197.047(6)(b), 439.3401(1)(m). The
Commonwealth appears to concede that counsel did not correct this error but argues that counsel
“is not the guarantor of accurate testimony.” (See D.N. 15, PageID # 76-77)
The Court is not convinced that had Johnson’s trial counsel corrected the probation and
parole officer, there is a “reasonable probability” that the jury would have sentenced him to
twenty instead of twenty-five years. See Edmonds, 2017 WL 3431970, at *30. Johnson has not
shown that the officer’s testimony affected the jury’s determination. Absent such a showing, it is
mere speculation to say that the jury would have recommended a lesser sentence. The Court
therefore concludes that Johnson is unable to show prejudice, and as a result, his ineffectiveassistance claim is barred by procedural default. See Jones, 801 F.3d at 562-63.

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D.

Certificate of Appealability

“Under the AEDPA, a decision of this Court may not be appealed to the Sixth Circuit
absent a certificate of appealability.” Haight v. White, No. 3:02-CV-00206-GNS-DW, 2017 WL
3584218, at *4 (W.D. Ky. Aug. 18, 2017); see also 28 U.S.C. § 2253(c)(1)(A). “A certificate of
appealability may issue . . . only if the applicant has made a substantial showing of the denial of
a constitutional right.” § 2253(c)(2). This showing requires “a demonstration that . . . includes
showing that reasonable jurists could debate whether (or, for that matter, agree that) the petition
should have been resolved in a different manner or that the issues presented were ‘adequate to
deserve encouragement to proceed further.’” Haight, 2017 WL 3584218, at *4 (quoting Slack v.
McDaniel, 529 U.S. 473, 483-84 (2000)).

“Where a court has rejected a petitioner’s

constitutional claim on the merits, the petitioner must demonstrate ‘that reasonable jurists would
find the district court’s assessment of the constitutional claims debatable or wrong’ to satisfy
Section 2253(c).” Id. (quoting Slack, 529 U.S. at 484). Meanwhile,
[a] certificate of appealability should be issued when a writ of habeas corpus is
denied on procedural grounds and the petitioner can demonstrate that: (1) “jurists
of reason would find it debatable whether the petition states a valid claim of the
denial of a constitutional right” and (2) “jurists of reason would find it debatable
whether the district court was correct in its procedural ruling.”
Id. (quoting Slack, 529 U.S. at 484).
Because the Court is satisfied that reasonable jurists would not find its rulings in this case
debatable, a certificate of appealability must be denied. See Smith v. Bolton, No. 3:16-cv-P528DJH, 2017 WL 319232, at *3 (W.D. Ky. Jan. 20, 2017).

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III.

CONCLUSION
For the reasons discussed above, and the Court being otherwise sufficiently advised, it is

hereby
ORDERED as follows:
(1)

The Findings of Fact, Conclusions of Law, and Recommendation of Magistrate

Judge Colin Lindsay (D.N. 29) are ADOPTED in part and INCORPORATED by reference
herein to the extent set forth above.
(2)

White’s objection (D.N. 30) to Judge Lindsay’s report and recommendation is

SUSTAINED. While the Court sustains this narrow objection, it does so without changing
Judge Lindsay’s conclusion that Johnson’s petition should be denied.
(3)

Johnson’s objection (D.N. 31) to Judge Lindsay’s report and recommendation is

OVERRULED.
(4)

A separate judgment will be issued this date.

March 12, 2018

David J. Hale, Judge
United States District Court

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