Johnson v. Villmer

Filing 21

MEMORANDUM: For the reasons discussed above, the Court concludes that petitioner has failed to establish that he is entitled to relief based on state court proceedings that were contrary to, or an unreasonable application of, clearly established f ederal law, or based upon an unreasonable determination of the facts in light of the evidence presented in the state court proceedings. 28 U.S.C. § 2254(d). Petitioner has also failed to make a substantial showing of the denial of a constitutional right and the Court will not issue a certificate of appealability. See Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997). Signed by District Judge Carol E. Jackson on 9/12/2016. (CLO)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ZACHARY A. JOHNSON,

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Petitioner,
vs.
TOM VILLMER,
Respondent.

No. 4:13-CV-1512 (CEJ)

MEMORANDUM
This matter is before the Court on the petition of Zachary Johnson for a writ
of habeas corpus pursuant to 28 U.S.C. § 2254.
I.

Procedural Background

Petitioner is presently incarcerated in the Farmington Correctional Center
pursuant to the sentence and judgment of the Circuit Court of Scott County,
Missouri. On April 25, 2011, following a bench trial, petitioner was found guilty of
one count of the class C felony of possession of child pornography (images) and
three counts of the class B felony of possession of child pornography (videos). The
trial court sentenced petitioner to concurrent terms of seven years’ imprisonment
for the class C felony and ten years’ imprisonment for each of the class B felonies.
Judgment, Resp. Ex. B at 53-55. The judgment was affirmed on appeal. State v.
Johnson, 372 S.W.3d 549 (Mo. Ct. App. 2012). Petitioner did not seek postconviction relief under Missouri law. He timely filed the instant petition on August
5, 2013.

II.

Factual Background

On March 20, 2009, petitioner was staying in a hotel in Columbia, Missouri,
with three boys who were attending a basketball championship. Transcript at 63,
Resp. Ex. A. One of the boys later reported to his father that he woke up in the
early morning to find petitioner rubbing his penis. The father contacted William
Cooper, a sergeant with the Missouri Highway Patrol, who interviewed the victim
and the two other boys. Id. at 64. The victim told Sgt. Cooper that he woke up at
5:30 in the morning, convinced he was dreaming. Petitioner then offered to
continue what he was doing. The victim declined and moved over to the bed his
friend was sleeping in. Johnson, 372 S.W.3d at 552. The victim also reported that
when he came out of the shower later that morning, petitioner was seated at the
desk working on his laptop computer. Transcript at 65. All three boys reported that
petitioner had been taking pictures while they were together in the hotel room. Id.
Sergeant Cooper also interviewed the victim’s uncle, who had arranged the
trip. He stated that he had known petitioner’s family for some time. Petitioner told
the victim’s uncle that he had a photography business and explained that he
wanted to take “cameo” photographs of children, which he described as taking
pictures of the children without their knowledge but with the consent of their
parents. The uncle stated that, in hindsight, his conversation with petitioner was
“ominous.” Affidavit in support of warrant, Resp. Ex. B at 28.
On March 24, 2009, Cooper obtained a search warrant for petitioner’s
residence to authorize seizure of any computers, cameras and other devices
capable storing, transmitting or receiving electronic data; all images depicting
sexual conduct, all images of minors in various states of undress; and items

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“related to the performance of sexual acts.” Id. at 30. Cooper executed the warrant
on March 25, 2009. During the search, petitioner admitted that he had computer
images of nude boys with erections.
Sergeant Paul Cordia of the Missouri Highway Patrol completed a forensic
analysis of the computers seized from petitioner’s home. Transcript at 82-83.
Cordia testified that he recovered over 500 still photographs and over 20 videos
depicting child pornography on one of the computers. Id. at 86. At trial, the
prosecutor introduced twenty photographs of children engaged in sexual acts and
three videos of pre-pubescent and pubescent males engaged in sexual acts.
Johnson, 372 S.W.3d at 553.
Additional facts will be provided as necessary to address petitioner’s claims.
III.

Legal Standard

When a claim has been adjudicated on the merits in state court proceedings,
habeas relief is permissible under the Antiterrorism and Effective Death Penalty Act
of 1996 (AEDPA), 28 U.S.C. § 2254(d), only if the state court’s determination:
(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.
28 U.S.C. § 2254 (d)(1)-(2).
A state court’s decision is “contrary to” clearly established law if “it applies a
rule that contradicts the governing law set forth in [the Supreme Court’s] cases, or
if it confronts a set of facts that is materially indistinguishable from a decision of
[the Supreme Court] but reaches a different result.” Brown v. Payton, 544 U.S.

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133, 141 (2005). “The state court need not cite or even be aware of the governing
Supreme Court cases, ‘so long as neither the reasoning nor the result of the statecourt decision contradicts them.’” Brown v. Luebbers, 371 F.3d 458, 461 (8th Cir.
2004) (citing Early v. Packer, 537 U.S. 3, 8 (2002)). “In the ‘contrary to’ analysis of
the state court’s decision, [the federal court’s] focus is on the result and any
reasoning that the court may have given; the absence of reasoning is not a barrier
to a denial of relief.” Id.
A decision involves an “unreasonable application” of clearly established law if
“the state court applies [the Supreme Court’s] precedents to the facts in an
objectively unreasonable manner,” Payton, 125 S. Ct. at 1439; Williams v. Taylor,
529 U.S. 362, 405 (2000), or “if the state court either unreasonably extends a legal
principle from [Supreme Court] precedent to a new context where it should not
apply or unreasonably refuses to extend that principle to a new context where it
should apply.” Id. at 406. “Federal habeas relief is warranted only when the refusal
was ‘objectively unreasonable,’ not when it was merely erroneous or incorrect.”
Carter v. Kemna, 255 F.3d 589, 592 (8th Cir. 2001) (quoting Williams, 529 U.S. at
410-11).
To preserve a claim for relief, “a habeas petitioner must have raised both the
factual and legal bases” of his claim to the state court, and afforded that court a fair
opportunity to review its merits. Abdi v. Hatch, 450 F.3d 334, 338 (8th Cir. 2006)
(citations omitted). Where a claim is defaulted, a federal habeas court will consider
it only if the petitioner can establish either cause for the default and actual
prejudice or that failure to consider the claim will result in a fundamental
miscarriage of justice. Id. To establish “cause” for the default, a petitioner generally

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must “show that some objective factor external to the defense impeded counsel’s
efforts to comply with the State’s procedural rule.” Murray v. Carrier, 477 U.S. 478,
488 (1986). To establish prejudice, the petitioner “must show that the errors of
which he complains ‘worked to his actual and substantial disadvantage, infecting his
entire trial with error of constitutional dimensions.’” Ivy v. Caspari, 173 F.3d 1136,
1141 (8th Cir. 1999) (quoting United States v. Frady, 456 U.S. 152, 170 (1982))
(emphasis omitted). To establish the “fundamental miscarriage” exception, a
petitioner must establish that, “in light of new evidence, ‘it is more likely than not
that no reasonable juror would have found petitioner guilty beyond a reasonable
doubt.’” House v. Bell, 547 U.S. 518, 536-37 (2006) (quoting Schlup v. Delo, 513
U.S. 298, 327 (1995)).
IV.

Discussion
Ground 1: Failure to Suppress Evidence

Before trial, petitioner filed a motion to suppress all photographs and videos,
arguing that Sgt. Cooper’s affidavit failed to articulate probable cause for the
search. Specifically, he contended that the affidavit did not adequately connect the
alleged abuse of the victim to the possession of child pornography. The trial court
denied the motion following a hearing. On appeal, the Missouri Court of Appeals
rejected petitioner’s Fourth Amendment challenge to the admission of the evidence,
finding that the search warrant was supported by probable cause and that the trial
court did not commit any error in denying petitioner’s motion to suppress. Johnson,
372 S.W.3d at 555-56.
In the instant petition, petitioner asserts that the trial court’s failure to
suppress the still images and videos violated his rights under the Fourth, Fifth, and

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Sixth Amendments. In the proceedings before the state courts, petitioner
challenged the denial of his suppression motion solely on Fourth Amendment
grounds. Thus, his claim is procedurally barred to the extent that it is based on the
Fifth and Sixth Amendments. Petitioner does not argue, nor would he be able to
establish, that his procedural default is excused under the “cause and prejudice” or
“fundamental miscarriage” exceptions.
Federal habeas review of petitioner’s Fourth Amendment claim is barred by
Stone v. Powell, 428 U.S. 465 (1976). In Stone, the Supreme Court held that
“where the State has 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 relief on the ground that evidence obtained in an
unconstitutional search or seizure was introduced at his trial.” Id. at 482. As
explained by the Eighth Circuit:
a federal habeas court considering a state prisoner’s claim alleging a
Fourth Amendment violation should abstain from reviewing the state
court records to determine if the state’s factual findings are fairly
supported by the record as a whole . . . Rather, the proper inquiry is
whether “the State has provided an opportunity for full and fair
litigation” of the claim.
Willett v. Lockhart, 37 F.3d 1265, 1270 (8th Cir. 1994) (en banc) (citation
omitted). On habeas review, federal courts “are not to consider whether full and
fair litigation of the claims in fact occurred in the state courts, but only whether the
state provided an opportunity for such litigation.” Id. at 1273 (emphasis in
original). It is indisputable that petitioner was provided an opportunity for full and
fair litigation of his claim.

Therefore, he is not entitled to federal review of the

substance of his claim in Ground 1.

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Ground 2: Improper Opinion Testimony
Petitioner challenges the admission of Sgt. Cordia’s testimony that the
images constituted child pornography, because the witness’s opinion was not
substantiated by supporting or corroborating evidence. On appeal, petitioner
argued only that the trial court improperly admitted Cordia’s lay opinion on an
ultimate issue reserved for the fact finder.1 Accordingly, petitioner is procedurally
defaulted from asserting any additional claim arising from the admission of Cordia’s
testimony.
Whether evidence is properly admitted is a question of state law that is not
reviewable in a federal habeas proceeding unless a specific constitutional right has
been infringed, or the evidence is so prejudicial as to deny due process. Carter v.
Armontrout, 929 F.2d 1294, 1296 (8th Cir. 1991). The federal court must find more
than trial error or even plain error to warrant habeas relief on the basis of an
evidentiary ruling. McCafferty v. Leapley, 944 F.2d 445, 452 (8th Cir. 1991). “An
evidentiary error violates due process rights only when the error complained of is
so gross, conspicuously prejudicial, or otherwise of such magnitude that it fatally
infects the trial.” Id. (citations omitted). The admission of Cordia’s opinion did not
violate petitioner’s constitutional rights.

Ground 2 does not present a cognizable

federal claim.
Ground 3: The Statute As Applied Is Void For Vagueness
Before trial, defense counsel moved to dismiss the charges against petitioner
asserting that the child pornography statute and the definition of child pornography
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The Court of Appeals determined that, even if the testimony was inadmissible, petitioner
could not demonstrate that he was prejudiced because (1) there is a presumption in a
court-tried case that the judge is not influenced by inadmissible evidence, and (2) the
images themselves were admitted. Johnson, 372 S.W.3d at 556.

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found at Mo. Rev. Stat. § 573.010 were unconstitutionally vague. Motion, Resp. Ex.
B at 40-45. The trial court denied the motion following a hearing. Petitioner did not
appeal the denial of his motion and thus this claim is procedurally defaulted. Once
again, petitioner does not argue, nor could he establish, that his procedural default
is excused under the “cause and prejudice” or “fundamental miscarriage”
exceptions. The claim in Ground 3 is denied.
IV.

Conclusion

For the reasons discussed above, the Court concludes that petitioner
has failed to establish that he is entitled to relief based on state court
proceedings that were contrary to, or an unreasonable application of, clearly
established federal law, or based upon an unreasonable determination of the
facts in light of the evidence presented in the state court proceedings. 28 U.S.C.
§ 2254(d). Petitioner has also failed to make a substantial showing of the denial
of a constitutional right and the Court will not issue a certificate of appealability.
See Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997).

CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 12th day of September, 2016.

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