Johnson v. Norman

Filing 37

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Judge Nanette A. Baker's report and recommendation 28 is adopted and sustained in its entirety. IT IS FURTHER ORDERED that Petitioner Gensun Johnson's Petition for Writ of Habeas Corpus [ 1] is DENIED. IT IS FURTHER ORDERED that the Court will not issue a certificate of appealability. A separate judgment in accordance with this Memorandum and Order is entered this same date. Signed by District Judge Rodney W. Sippel on 9/27/16. (CAR)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
GENSUN JOHNSON,
Petitioner,
v.
TROY STEELE and,
CHRIS KOSTER,
Respondent.

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Case No. 4:13 CV 1278 RWS

MEMORANDUM AND ORDER
This matter is before me on Petitioner Gensun Johnson’s petition for writ of
habeas corpus pursuant to 28 U.S.C. ' 2254. I referred this matter to United States
Magistrate Judge Nannette A. Baker for a report and recommendation on all
dispositive matters pursuant to 28 U.S.C. ' 636(b). Judge Baker submitted her
recommendation that Johnson’s habeas petition should be denied. Johnson has
filed objections to Judge Baker=s report.1 I have conducted a de novo review of
Johnson’s claims and have carefully reviewed the record in this case. Based on
that review, I agree with Judge Baker that Johnson’s petition should be denied.

1

Johnson filed objections to Judge Baker’s recommendation but these objections, for the most part, merely adopt the
reply brief Johnson previously filed in this case.

Johnson was convicted of first degree murder, first degree assault, and two
counts of armed criminal action. He was sentenced to life imprisonment without
parole for first degree murder, life in prison for the armed criminal action counts,
and seven years imprisonment for the second degree assault conviction. Johnson’s
conviction was based on an incident in which Johnson fired six shots into a car,
killing one victim and injuring another.
In his habeas petition Johnson raises ten grounds for relief. The first two
grounds of his habeas petition assert trial error regarding the admission into
evidence of the high speed chase Johnson led the police on immediately prior to
his arrest and the gun he threw from the car during the chase. His next two
grounds assert trial error for the trial court permitting, during voire dire, the state
questioning the venire panel regarding the ability to convict based solely on
eyewitness testimony or solely on the testimony of only one eyewitness. I agree
with Judge Baker’s finding that these grounds fail to support a claim for habeas
relief because they involve rules of evidence and trial procedure that are matters of
state law. Palmer v. Clarke, 408 F.3d 423, 436 (8th Cir. 2005) (“The admissibility
of evidence in a state trial is a matter of state law, and thus we will grant habeas
relief only if the state court's evidentiary ruling ‘infringes upon a specific
constitutional protection or is so prejudicial that it amounts to a denial of due
process.’” quoting Clark v. Groose, 16 F.3d 960, 963 (8th Cir.1994)). None of the
trial court’s actions on these grounds infringed upon a specific constitutional
protection or was so prejudicial as to amount to a denial of due process.
2

Johnson’s remaining six grounds for relief assert claims of ineffective
assistance of trial counsel and direct appeal counsel. To prevail on a claim alleging
ineffective assistance of counsel, a defendant must show counsel’s performance
was deficient and that the deficient performance prejudiced the defense. In other
words, a defendant must show that but for counsel’s ineffective assistance the
result of the trial would have been different. Strickland v. Washington, 466 U.S.
668, 686-687 (1984). "[S]trategic choices made after thorough investigation of law
and facts relevant to plausible options are virtually unchallengeable." Id. at 690.
There is a “strong presumption that counsel's conduct falls within the wide range of
reasonable professional assistance." Id. at 689.
In his fifth ground for relief Johnson asserts that his trial counsel was
deficient by failing to call two purported alibi witnesses. The state post-conviction
court conducted credibility determinations and concluded that Johnson and his
witnesses were not credible. Such a determination is presumed to be correct and
Johnson has the burden to overcome this presumption by clear and convincing
evidence. 28 U.S.C. ' 2254(e). Johnson failed to meet that standard. The state
court of appeals affirmed the post-conviction court’s rulings. I find that the state
appellate court’s ruling did not result in a decision that was contrary to, or an
unreasonable application of federal law, nor an unreasonable determination of the
facts. 28 U.S.C. ' 2254(d). As a result, Johnson is not entitled to relief on these
grounds.
Johnson’s remaining grounds for relief are procedurally defaulted and also
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lack merit. Johnson asserts his trial counsel was ineffective for failing to object to
the striking a venire person by the prosecutor; failing to object to part of the
prosecutor’s closing argument; and failing to object to the prosecutor’s alleged
vouching for a witness. None of these grounds has merit based on the record.
Even if Johnson’s trial counsel could be deemed to have been constitutionally
ineffective based on these grounds (which she was not), there is no reasonable
probability that the result of the trial would have been different if these alleged
errors had not occurred. Johnson was identified by more than one eyewitness, who
knew him personally, as the shooter.
Johnson’s last two grounds for relief assert that his direct appeal counsel was
ineffective for failing to appeal the trial court’s admission into evidence of an
unavailable witness’s previous trial testimony and the previous statement of
another witness. These evidentiary rulings are matters of state law. Nebinger v.
Ault, 208 F.3d 695, 697 (8th Cir. 2000) (state court rulings “on the admission or
exclusion of evidence in state trials rarely rise to the level of a federal
constitutional violation.”). The rulings did not infringe upon a specific
constitutional protection or were so prejudicial as to amount to a denial of due
process. These grounds for relief are without merit.
After reviewing the record in this matter, I find that Johnson is not entitled to
habeas relief on any of the grounds raised in his petition. As a result, I will adopt
the report and recommendation of Judge Baker and deny Johnson’s petition.
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Certificate of Appealability
I have considered whether to issue a certificate of appealability in this
matter. To grant a certificate of appealability, I must find a substantial showing of
the denial of a federal constitutional right. See Tiedeman v. Benson, 122 F.3d 518,
522 (8th Cir. 1997). A substantial showing is a showing that issues are debatable
among reasonable jurists, a court could resolve the issues differently, or the issues
deserve further proceedings. Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997)
(citing Flieger v. Delo, 16 F.3d 878, 882-83 (8th Cir. 1994).
I believe that Johnson has not made such a showing on the grounds raised in
his petition. Therefore, I will not issue a certificate of appealability.
Accordingly,
IT IS HEREBY ORDERED that Judge Nanette A. Baker=s report and
recommendation is adopted and sustained in its entirety.
IT IS FURTHER ORDERED that Petitioner Gensun Johnson’s Petition
for Writ of Habeas Corpus is DENIED.
IT IS FURTHER ORDERED that the Court will not issue a certificate of
appealability.
A separate judgment in accordance with this Memorandum and Order is
entered this same date.
_________________________________
RODNEY W. SIPPEL
UNITED STATES DISTRICT JUDGE
Dated this 27th day of September, 2016.
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