Johnson v. Quarterman

Filing 8

MEMORANDUM OPINION AND ORDER dismissing case in part with prejudice and ordering petitioner to show cause by 7/19/2010.(Signed by Judge Gray H. Miller) Parties notified.(gseidl)

J o h n s o n v. Quarterman

Doc. 8

IN THE UNITED STATES DISTRICT COURT F O R THE SOUTHERN DISTRICT OF TEXAS H O U S T O N DIVISION C ARL WILLIAM JOHNSON, P e titio n e r , v. R ICK THALER, R e s p o n d e n t. § § § § § § § § §

C IVIL ACTION NO. H-07-1152

MEMORANDUM OPINION AND ORDER
Petitioner Carl William Johnson, a state inmate proceeding pro se and in forma p a u p e ris , challenges his 1982 state felony conviction for aggravated sexual assault and the 2 0 0 2 denial of his motion for post-conviction DNA testing. After reviewing the pleadings u n d e r Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts, th e Court concludes that this case must be DISMISSED IN PART with an ORDER TO S H O W CAUSE, as follows. B a c k g ro u n d and Claims P e titio n e r was convicted of aggravated sexual assault in 1982 and sentenced to sixty ye a rs incarceration. The conviction was affirmed on appeal. Petitioner reports that the Texas C o u rt of Criminal Appeals denied his two applications for state habeas relief in 1984. He f u rth e r reports that in 2002, the state trial court denied his motion for post-conviction DNA te stin g under Chapter 64 of the Texas Code of Criminal Procedure, based on the State's proof

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in 2002 that it no longer had any biological evidence from the 1982 trial. The denial of postc o n v ic tio n DNA testing was affirmed on direct appeal. Johnson v. State, No. 14-02-00663C R (Tex. App. ­ Houston [14th Dist.] 2003, no pet.). In the instant petition, petitioner challenges the state court's 2002 denial of postc o n v i c tio n DNA testing under the following grounds: (1 ) (2) (3 ) e rro r by the trial court in denying post-conviction DNA testing; in e f f e c tiv e assistance of counsel during the DNA motion hearing; d e n ia l of due process by the State's failing to preserve the rape kit evidence f ro m his 1982 trial for purposes of post-conviction DNA testing; and a c tu a l innocence based on the State's acknowledgment that it no longer has the ra p e kit regarding petitioner's 1982 criminal prosecution.

(4 )

P e titio n e r also challenges his 1982 conviction under the following two grounds: (5) p ro s e c u to ria l misconduct by the State in presenting false and misleading e v id e n c e; and A Batson violation. A p p lic a b le Rules and Standards T h is petition is governed by applicable provisions of the Antiterrorism and Effective D e a th Penalty Act of 1996 (AEDPA). 28 U.S.C. § 2254. Under AEDPA, federal relief c a n n o t be granted on legal issues adjudicated on the merits in state court unless the state c o u rt adjudication was contrary to clearly established federal law as determined by the S u p r e m e Court, or involved an unreasonable application of clearly established federal law

(6)

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a s determined by the Supreme Court. Williams v. Taylor, 529 U.S. 362, 404-05 (2000); 28 U .S .C . §§ 2254(d)(1), (2). A state court decision is contrary to federal precedent if it applies a rule that contradicts the governing law set forth by the Supreme Court or if it confronts a s e t of facts that are materially indistinguishable from a Supreme Court decision and arrives a t a result different from Supreme Court precedent. Early v. Packer, 537 U.S. 3, 7-8 (2002). A state court unreasonably applies Supreme Court precedent if it unreasonably applies th e correct legal rule to the facts of a particular case, or unreasonably extends a legal p rin c ip le from Supreme Court precedent to a new context where it should not apply or u n re a s o n a b ly refuses to extend that principle to a new context where it should apply. W illia m s, 529 U.S. at 409. In deciding whether a state court's application was unreasonable, th is Court considers whether the application was objectively unreasonable. Id. at 411. A E D P A affords deference to a state court's resolution of factual issues. Under 28 U .S .C . § 2254(d)(2), a decision adjudicated on the merits in a state court and based on a f a c tu a l determination will not be overturned on factual grounds unless it is objectively u n re a s o n a b le in light of the evidence presented in the state court proceeding. Miller-El v. C o c k re ll, 537 U.S. 322, 343 (2003). A federal habeas court must presume the underlying f a ctu a l determination of the state court to be correct, unless the petitioner rebuts the p re su m p tio n of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); see a ls o Miller-El, 537 U.S. at 330-31.

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U n d e r AEDPA, federal habeas petitions are subject to a one-year limitations period f o u n d in 28 U.S.C. § 2244(d), which provides as follows: (d )(1 ) A 1-year period of limitations shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State c o u rt. The limitation period shall run from the latest of ­ (A ) th e date on which the judgment became final by the conclusion of d ire c t review or the expiration of the time for seeking such review; th e date on which the impediment to filing an application created b y State action in violation of the Constitution or laws of the U n ite d States is removed, if the applicant was prevented from f ilin g by such State action; th e date on which the constitutional right asserted was initially re c o g n ize d by the Supreme Court, if the right has been newly re c o g n ize d by the Supreme Court and made retroactively a p p lic a b le to cases on collateral review; or th e date on which the factual predicate of the claim or claims p re se n te d could have been discovered through the exercise of d u e diligence.

(B )

(C )

(D )

(2 )

T h e time during which a properly filed application for State post-conviction o r other collateral review with respect to the pertinent judgment or claim is p e n d in g shall not be counted toward any period of limitation under this s u b s e c ti o n .

2 8 U.S.C. §§ 2244(d)(1),(2). Analysis C la im s Regarding Post-Conviction DNA Testing Under Texas law, a convicted person may submit to the convicting court a motion re q u e s tin g DNA testing of evidence containing biological material. TEX. CODE CRIM. P. art.

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6 4 .0 1 (a ). The convicted person must demonstrate that the evidence "was secured in relation to the offense that is the basis of the challenged conviction and was in possession of the state d u rin g the trial of the offense," but that the state has not previously tested it. Id., art. 6 4 .0 1 (b ). Additionally, the convicted person must show that the identity of the perpetrator w a s or is an issue in the case and must establish by a preponderance of the evidence that he w o u ld not have been convicted if exculpatory results had been obtained through DNA te s tin g . Id., art. 64.03(a)(1)(B), (2)(A). If these requirements are met, the state court may o rd e r DNA testing. Id., art. 64.03(b). After examining the results of the testing, the c o n v ictin g court shall hold a hearing and make a finding as to whether it is reasonably p ro b a b le that the person would not have been convicted had the results been available during th e trial of the offense. Id., art. 64.04. Any right petitioner may have regarding post-conviction DNA testing arises solely u n d e r Texas law and does not implicate a federal constitutional issue. See Trevino v. J o h n so n , 168 F.3d 173, 180 (5th Cir. 1999); see also Richards v. District Attorney's Office, 3 5 5 F. App'x 826, 826 (5th Cir. 2009) (unpublished). Federal habeas relief is only available if a petitioner shows he is in custody in violation of the Constitution or laws or treaties of the U n ite d States. 28 U.S.C. § 2254(a). As petitioner's challenges to the denial of his motion re g a rd in g DNA testing are based solely on state law, they provide no basis for federal habeas r e lie f .

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F o r like reason, petitioner's complaints regarding counsel's performance at the DNA te stin g hearing afford him no relief as no federal constitutional issue is presented. Even a ss u m in g petitioner enjoyed a Sixth Amendment right to counsel for purposes of his postc o n v ic tio n DNA testing proceeding, the state appellate court rejected his claim of ineffective a s s is ta n c e of counsel. Williams v. State, No. 14-02-00663-CR (Tex. App. ­ Houston [14th D is t.] 2003, no pet.). Petitioner fails to show that the state court's determination was c o n tra ry to clearly established federal law as determined by the Supreme Court, or involved a n unreasonable application of clearly established federal law as determined by the Supreme C o u rt. 28 U.S.C. §§ 2254(d)(1), (2). Further, the Texas Court of Criminal Appeals determined that petitioner's Fourteenth A m e n d m e n t due process rights were not denied by the State's failure to preserve potentially u s e f u l evidence in his conviction. Ex parte Johnson, WR-13470-14 (Tex. Crim. App. 2007). T h e Fourteenth Court of Appeals of Texas reached the same conclusion in affirming the d e n ia l of petitioner's motion for post-conviction DNA testing. Johnson v. State, No. 14-020 0 6 6 3 -C R (Tex. App. ­ Houston [14th Dist.] 2003, no pet.). The Supreme Court has held t h a t, "unless a criminal defendant can show bad faith on the part of the police, failure to p re s e rv e potentially useful evidence does not constitute a denial of due process of law." A r iz o n a v. Youngblood, 488 U.S. 51, 57-58 (1988). Petitioner shows no bad faith on the part o f the police or the State in its failure to retain the rape kit for twenty years, particularly in

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lig h t of the fact that the state statute giving rise to post-conviction DNA testing did not exist u n til nearly two decades after petitioner's trial. Petitioner also asserts that, because the State no longer has the rape kit evidence from 1 9 8 2 , he is "actually innocent" of the offense and should be released. That the State no lo n g e r possesses the rape kit from the 1982 offense does not constitute "new evidence" with w h ic h no reasonable juror would have convicted him nor does it establish that petitioner was a c tu a lly innocent of the aggravated sexual assault. Additionally, petitioner establishes no u n d e rlyin g constitutional violation within which the issue of "actual innocence" becomes v i a b le as to his post-conviction DNA testing proceedings. The Supreme Court holds that th e re is no freestanding federal constitutional right to post-conviction access to DNA e v id e n c e for testing. District Attorney's Office for Third Judicial District v. Osborne, __U.S. _ _ , 129 S. Ct. 2308, 2323 (2009). Challenges to the 1982 Conviction P e titio n e r raises claims for prosecutorial misconduct and a Batson violation arising f ro m his 1982 trial for aggravated sexual assault. As to the first issue, petitioner argues that, b e c au s e there was no laboratory testing matching him to the rape kit evidence taken of the c o m p la in a n t in the 1982 trial, there was no "definitive" evidence identifying him as the a ss a ilan t, and the prosecutor wrongfully argued to the jury that the evidence established his g u ilt. Petitioner contends that this claim is not barred by the applicable one-year statute of

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lim itatio n because it constitutes "newly discovered evidence" in that he did not "discover" u n til July 26, 2005, when another inmate brought it to his attention. U n d e r section 2254(d)(1)(D), the one-year limitation commences on the date on which th e factual predicate of the claim presented could have been discovered through the exercise o f due diligence. In the instant case, petitioner admits that a lab technician testified in the 1 9 8 2 trial that he did not process any biological evidence from petitioner for purposes of m a tc h in g it to the complainant's rape kit evidence. (Docket Entry No. 2, p. 2.) Accordingly, p e titio n e r's own arguments show that the factual predicate of this claim could have been d is c o v e re d through the exercise of due diligence as of the time of his 1982 trial. That another in m a te did not "point it out to him" until 2005 did not act to commence limitations as of that d a t e . Thus, this claim is barred by limitations. A s to the second issue, the Court notes that the events giving rise to petitioner's B a ts o n claim also occurred during the 1982 trial. Accordingly, petitioner had until April 26, 1 9 9 7 , to file a federal habeas petition regarding this claim. See Coleman v. Johnson, 184 F .3 d 398, 401 (5th Cir. 1999). Petitioner states that he did not seek federal habeas relief on th i s issue until the filing of this petition in 2007. Accordingly, petitioner's Batson claim is b a rr e d by limitations and subject to dismissal. Unlike his arguments regarding prosecutorial misconduct, petitioner does not attempt to show why this claim is not barred by limitations. Petitioner is ORDERED TO SHOW C A U S E , by written response filed by JULY 19, 2010, why his Batson claim should not be 8

d ism iss e d as barred by limitations. Petitioner's failure to comply timely with this order will r e su l t in dismissal of this claim as barred by limitations.

C o n c lu s io n P e titio n e r's habeas claims arising from his post-conviction DNA testing proceedings u n d e r state law are DISMISSED WITH PREJUDICE for failure to state a cognizable federal h a b e a s claim. Petitioner's habeas claim raising prosecutorial misconduct in his 1982 conviction is D I S M I S S E D WITH PREJUDICE as barred by limitations. P e titio n e r is ORDERED TO SHOW CAUSE, by written response filed by JULY 19, 2 0 1 0 , why his Batson claim arising from his 1982 conviction should not be dismissed as b a rr e d by limitations. THIS IS AN INTERLOCUTORY ORDER. T h e Clerk will provide a copy of this order to the parties. S ig n e d at Houston, Texas, on June 30, 2010.

Gray H. Miller U n ite d States District Judge

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