Johnson v. Thurmer

Filing 26

ORDER signed by Judge J P Stadtmueller on 9/30/10: denying 1 petitioner's petition for a writ of habeas corpus; dismissing this case with prejudice; and denying a certificate of appealability. (cc: petitioner, all counsel)(nm)

J o h n s o n v. Thurmer

D o c . 26

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN
IVAN JOHNSON, Petitioner, v. MICHAEL THURMER, W arden Waupun Correctional Institution, Respondent. Case No. 09-CV-694

ORDER
O n July 15, 2009, petitioner Ivan Johnson ("Johnson") filed a Petition for W rit o f Habeas Corpus (Docket #1) pursuant to 28 U.S.C. § 2254. He asserts five g ro u n d s for relief. Johnson's conviction arose from an armed robbery and shooting in Mequon, Wisconsin. He was convicted at a bench trial of felony murder as party to the crime. Johnson waived his right to a jury trial, and was identified as a p a r tic ip a n t by four witnesses: one of the victims of the robbery, a co-actor, a witness to the planning of the robbery, and a jailhouse informant. After conviction, Johnson to o k a direct appeal to the W is c o n s in Court of Appeals which proceeded under the n o -m e rit process addressed in W is c o n s in Statutes § 809.32. On June 21, 2006, the a p p e lla te court affirmed the conviction. The W is c o n s in Supreme Court then denied J o h n s o n 's petition for review. Afterward, Johnson moved for postconviction relief u n d e r W is c o n s in Statutes § 974.06. The circuit court denied the motion, and the

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d e n ia l was affirmed by the court of appeals. Finally, the supreme court denied J o h n s o n 's petition for review. L E G AL STANDARD A court may only grant relief under 28 U.S.C. § 2254 where a petitioner is held in custody in violation of the Constitution or United States law or treaty. 28 U.S.C. § 2254(a). If "any claim" put forth by the petitioner has been "adjudicated on the m e rits " in state court, a federal court may only grant relief if the decision "was c o n tra ry to, or involved an unreasonable application of, clearly established Federal la w , as determined by the Supreme Court of the United States" or "was based on an u n re a s o n a b le determination of the facts in light of the evidence presented." 28 U .S .C . § 2254(d). The last state court decision on the merits is considered the re le va n t decision to review. Charlton v. Davis, 439 F.3d 369, 374 (7th Cir. 2006). W h e re a state court has not ruled on the merits, the standard contained in 28 U.S.C. § 2243 applies instead. Braun v. Powell, 227 F.3d 908, 917 (7th Cir. 2000). In that c a s e , the court must determine the facts "and dispose of the matter as law and ju s tic e requires." 28 U.S.C. § 2243. A state court decision is contrary to federal law where it applies a rule c o n tr a d ic tin g governing law set out by the Supreme Court or reaches a different re s u lt in a case with materially indistinguishable facts. Williams v. Taylor, 529 U.S. 3 6 2 , 405-06 (2000). An unreasonable application of federal law is one where the s ta te court correctly identifies the legal rule but unreasonably applies it to the facts.

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Id . at 407. Unreasonable application includes unreasonably extending a legal p rin c ip le to a new context where it does not apply, or unreasonably refusing to e xte n d such where it should apply. Id. An incorrect decision is not necessarily an u n re a s o n a b le one, and thus a federal court may not substitute its independent ju d g m e n t to correct an erroneous, but reasonable decision. See id. at 410-11; see a lso Washington v. Smith, 219 F.3d 620, 628 (7th Cir. 2000). A decision "minimally c o n s is te n t with the facts and circumstances" is reasonable, but one "lying well o u ts id e the boundaries of permissible differences of opinion" is not. Conner v. M c B rid e , 375 F.3d 643, 649 (7th Cir. 2004). As to factual determinations, state court f in d i n g s are presumed correct and the petitioner must demonstrate

u n re a s o n a b le n e s s by clear and convincing evidence. Id.; 28 U.S.C. § 2254(e)(1). AN AL Y S IS J o h n s o n 's five stated grounds for relief are as follows: (1) his trial counsel's fa ilu re to address Fourth Amendment violations resulted in ineffective assistance of c o u n s e l; (2) the conviction was obtained through use of perjured testimony; (3) the p e titio n e r's Miranda rights were violated; (4) his waiver of the right to a jury trial was u n k n o w in g , unintelligent and involuntary; and (5) ineffective assistance of counsel fo r trial attorney's failure to challenge identification of the petitioner. Because the c o u rt finds no ground sufficient for relief, the court will deny Johnson's petition.

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I.

IN E F F E C T IV E ASSISTANCE FOR FAILURE TO ADDRESS SUPPRESSION J o h n s o n 's first claim is that his trial counsel failed to file a pretrial motion to

s u p p re s s evidence or to dismiss the case for lack of probable cause to arrest or lack o f probable cause to bind over for trial. (Pet'r's Br. in Supp. 1) (Docket #2). Johnson d is p u te s that he ever gave police a confession and that counsel failed to file a m o tio n to suppress his inculpatory statement. Johnson also argues that probable c a u s e to arrest and to bind over for trial was based on the alleged confession. He c la im s that any such confession occurred after arrest and thus could not support p ro b a b le cause for the arrest, and that there were no other facts to support probable c a u s e to arrest. In turn, Johnson says he brought this to trial counsel's attention, but n o action was taken. T h e standard for showing ineffective assistance of counsel contains two p ro n g s : (1) the representation falls below an "objective standard of reasonableness"; a n d (2) there is "a reasonable probability that, but for counsel's unprofessional e rrors , the result of the proceeding would have been different." Strickland v.

W a s h in g to n , 466 U.S. 668, 688, 694 (1984). The appellate court which decided the n o -m e rit appeal correctly identified this standard. (Resp't's Answer Ex. G, at 5) (D o c k e t #13). Further, this court is unaware of a materially indistinguishable case w ith a different outcome. Thus, the appellate court's resolution was not contrary to fe d e ra l law. In its decision, the appellate court found that the trial counsel's conduct d id not satisfy the second prong of the Strickland test because any information which

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w o u ld have been brought forward at a suppression hearing did, in fact, come before th e circuit court at trial, and was properly considered. (Resp't's Answer Ex. G, at 78 ). This is not an unreasonable application of the Strickland rule to the facts. T h e re fo re , because the appellate court's decision was not contrary to, or an u n re a s o n a b le application of federal law, this court must deny relief on the s u p p re s s io n ground. U n lik e Johnson's claim for ineffective assistance related to moving for s u p p re s s io n , the appellate court did not actually review the ineffective assistance c la im as related to probable cause. Rather, the court discussed only whether p ro b a b le cause existed to arrest Johnson, determining that it did. Id. at 4-5.

C o n s e q u e n tly , this court's review of the issue falls outside of § 2254(d), and the c la im will instead be disposed of "as law and justice requires." However, because th is court agrees that probable cause to arrest existed because of two separate id e n tifyin g statements, id., Strickland's second prong is once again unsatisfied. The s a m e holds true with regard to probable cause to bind Johnson over for trial. While n o t directly reviewed by the appellate court, this court finds that there was sufficient e vid e n c e , in the form of identifying statements, id., to otherwise bind Johnson over, a n d thus the prejudice prong of Strickland is lacking. Therefore, this court will deny J o h n s o n relief on his first ground.

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II.

C O N V IC T IO N OBTAINED THROUGH PERJURED TESTIMONY J o h n s o n 's next ground involves two issues: his general objection to use of

a lle g e d ly perjured testimony; and failure of the trial court to hold an evidentiary h e a rin g . (Pet'r's Br. in Supp. 6-7). Neither ground succeeds. A. O b je c tio n to Use of Testimony

J o h n s o n again points to the allegedly false testimony of the officer who related h is confession, arguing that it was deliberate deception and caused a structural d e fe c t in the proceeding. However, the appellate court determined that the issue re g a rd in g the existence of a written statement was properly explored at trial and that n o perjury occurred. (Resp't's Answer Ex. G, at 8). Johnson has not shown this fa c tu a l determination was unreasonable by clear and convincing evidence. Beyond h is argument as to the officer's assertions regarding written statements, Johnson m a k e s no more than bare claims of fabrication as to the confession. But the trial c o u rt heard the officer's testimony regarding the confession, as well as Johnson's te s tim o n y denying that he made a confession. (Resp't's Answer Ex. V, at 161-75; E x. W , at 92-93, 99-100). Because the trial court found Johnson guilty, (Resp't's A n s w e r Ex. X, at 15-18), it made a finding that Johnson's testimony denying in vo lve m e n t and denying having made a confession was not credible. Again,

J o h n s o n has not offered clear and convincing evidence that this finding was u n re a s o n a b le . As such, this ground does not afford Johnson a basis for relief.

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B.

E vid e n tia ry Hearing

J o h n s o n also alleges that the state courts improperly failed to hold an e vid e n tia ry hearing on the issue, and simultaneously asks this court to hold such a h e a rin g . (Pet'r's Br. in Supp. 7). However, Johnson does not identify any federal law u n d e r which the state courts should have held a hearing. Further, a federal

e vid e n tia ry hearing may only occur where the factual basis was not developed in s ta te court and the claim relies on a new, retroactive rule or an undiscovered factual p re d ic a te , and the facts underlying the claim are sufficient to establish by clear and c o n vin c in g evidence that no reasonable fact finder would have come to a guilty ve rd ic t. 28 U.S.C. § 2254(e)(2). Johnson does not establish that the claim relies u p o n a new rule or factual predicate. He also does not establish that he would be fou n d innocent absent the alleged perjury. The trial court had sufficient alternative e vid e n c e on which to convict Johnson.1 Therefore, state court failure to provide an e v id e n tia ry hearing is not grounds for relief, and a hearing in this court is not w a rra n te d . This court will deny relief on the second ground. III. V IO L AT IO N OF MIRANDA RIGHTS J o h n s o n appears to make two arguments regarding an alleged failure to give M ira n d a warnings before his confession. He puts forth both an ineffective

a s s is ta n c e of counsel argument, as well as simply claiming that the confession was

See (Resp't's Answer Ex. G, at 2) (appellate court stating evidence: testimony of robbery victim, testimony of co-actor, testimony of witness to planning, testimony of inmate informant, and fingerprint).

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in v o lu n t a r y , or that he at least should have received a hearing on voluntariness. (P e t'r's Br. in Supp. 9-11). To the extent Johnson argues ineffective assistance of c o u n s e l, the prior analysis regarding suppression applies here as well. The

a p p e lla te court found the prejudice prong of Strickland unsatisfied based on the trial c o u rt's verdict after consideration of both Johnson's and the officer's testimony re g a rd in g the Miranda rights. (Resp't's Answer Ex. G, at 7-8). Again, this

a p p lic a tio n is neither contrary to, nor an unreasonable application of federal law. T h u s , an ineffective assistance claim is no ground for relief. As to an actual claim of involuntariness, the appellate court reviewed the re c o rd and found that the issue was fully litigated at trial. Id. The court also noted t h a t Johnson did not allege the use of any other coercive tactics to obtain the c o n fe s s io n . Id. at 7. Johnson must show that such finding was unreasonable by c le a r and convincing evidence. This he does not do. Johnson's primary point is that h e never signed the written waiver of rights. However, signing a waiver is not re q u ire d to make a waiver effective. See Berghuis v. Thompkins, 130 S. Ct. 2250, 2 2 6 2 -6 4 (2010). Johnson cites one case to support his call for an evidentiary h e a rin g on voluntariness, but that case is inapposite.2 This court is unaware of any

Johnson cites to Jackson v. Denno, 378 U.S. 368 (1964) for the proposition that an evidentiary hearing on voluntariness is required in state court. However, that case required such only where the state procedure for determining voluntariness left the question to the jury, allowing them to consider the confession in full, unlike states which leave it to the judge to "solely and finally determine the voluntariness" before admitting a confession into evidence. Id. at 376-80. Here, because it was a bench trial, the same Due Process concern as in Jackson is not raised. The judge came to a conclusion on voluntariness in deciding the verdict.

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S u p r e m e Court precedent which requires an evidentiary hearing in a case such as th is . Thus, Johnson has failed to show the appellate court's factual determination o f voluntariness was unreasonable, and that ruling, as well as the lack of a hearing, w a s not contrary to, or an unreasonable application of, federal law. Therefore, J o h n s o n 's third ground fails to justify relief. IV . W AIV E R OF JURY TRIAL J o h n s o n 's next ground alleges that withholding mental health records of a p ro s e c u tio n witness led to an invalid jury waiver. (Pet'r's Br. in Supp. 11-20). His o ve ra rc h in g argument is that, had the prosecution disclosed the mental health re c o rd s , Johnson would not have chosen to waive a jury trial. The parties' first point o f dispute is whether the claim was adjudicated on the merits in state court and thus d e s e rvin g of the more deferential standard of review. Johnson's claim of invalid jury w a ive r was indeed adjudicated on the merits in his no-merit appeal. (Resp't's A n s w e r Ex. G, at 3-4). However, his claim that he would not have waived the jury h a d he been in possession of the mental health records was not discussed at that tim e . On the other hand, both the circuit court and court of appeals discussed the m e n ta l health records issue in Johnson's motion for postconviction relief. (Resp't's A n s w e r Ex. K, at App. 100-01; Ex. N, at 3-5). That motion, however, raised the m e n ta l health records issue in the context of seeking a new trial. J o h n s o n fails to assert a ground for relief here. The best guidance on how to d e fin e a "claim" for this purpose may be found in a Seventh Circuit case interpreting

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2 8 U.S.C. § 2244 which governs finality of habeas corpus determinations. B r a n n ig a n v. United States, 249 F.3d 584 (7th Cir. 2001). In Brannigan, the court w ro te that "it is essential to define the 'claim' as a challenge to a particular step in the c a s e , such as the introduction of a given piece of evidence, the text of a given jury in s tru c tio n , or the performance of counsel." Id. at 588 (emphasis in original). "If, for e xa m p le , the defendant invokes the fourth amendment to protest the introduction of o n e item of evidence, a later contest to the same evidence based on the fifth or sixth a m e n d m e n t is just another iteration of the same claim." Id. The principle, as stated, is "that new legal arguments about the same events do not amount to a new claim." Id . "[I]t is the underlying events, rather than the legal arguments advanced to obtain re lie f from those events, that demarcate a 'claim.'" Id. Specifically, in Brannigan the c o u rt applied the principle to determine that separate complaints about differing e le m e n ts of a sentencing calculation were in fact the same claim. Id. Each petition in vo lve d the same sentence and, in fact, used the same legal theory. Id. T h u s , under Brannigan's conception of a claim, and by the language of § 2254(d), this claim has been adjudicated on the merits, despite Johnson's addition o f a new argument. Johnson here charges that his waiver of a jury trial was invalid, the same event he challenged in his no-merit appeal. It matters not that his theory th is time around is based on alleged withholding of evidence. Additionally, to the e xte n t that Johnson's claim can be construed as simply challenging the withholding o f evidence in general, that claim too was adjudicated on the merits in his

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p o s tco n vic tio n motion. Thus, this court will analyze both issues under the more d e fe re n tia l standard of review. A defendant may waive the right to trial by jury. U.S. v. Booker, 543 U.S. 220, 2 7 6 (2005) (citing Patton v. United States, 281 U.S. 276, 312-13 (1930)). However, a waiver of a Constitutional right must be voluntary, knowing and intelligent, "done w ith sufficient awareness of the relevant circumstances and likely consequences." B r a d y v. United States, 397 U.S. 742, 748 (1970). In the case at hand, the appellate c o u rt reviewed Johnson's waiver under W is c o n s in case law requiring "knowing, in te llig e n t and voluntary" waiver. (Resp't's Answer Ex. G, at 3-4). W h ile the cited c a s e had more particular requirements for satisfying the standard, the court s u ffic ie n tl y identified correct Supreme Court precedent,3 and thus its decision to d e n y relief on waiver grounds was not contrary to federal law. Neither was the a p p lic a tio n unreasonable. The appellate court observed that Johnson conferred with c o u n s e l for roughly thirty minutes before waiving his right, and did so against his trial c o u n s e l's advice. Id. at 3. After conferring with counsel, the trial court advised J o h n s o n of his right, what it meant, received Johnson's confirmation that he had not b e e n subject to threats or promises in regard to the waiver, and confirmed his free a n d voluntary waiver. Id. The appellate court found no reason to invalidate the jury w a ive r, and such decision is not an unreasonable application of federal law.

A state court need not explicitly identify the Supreme Court precedent in question. Early v. Packer, 537 U.S. 3, 8 (2002) (state decisions need not cite or even be aware of Supreme Court cases so long as neither reasoning, nor result contradicts).

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T o the extent Johnson's petition complains more generally of withholding e vid e n c e , the appellate court's affirmation of the decision to deny postconviction re lie f on this ground also survives review here. Prosecutorial suppression of

e vid e n c e favorable to a defendant violates Due Process when the evidence is m a te ria l to either guilt or punishment. Brady v. Maryland, 373 U.S. 83, 87 (1963). T h e appellate court sufficiently applied such precedent in making its determination tha t the medical records did not support granting a new trial. The appellate court a p p lie d W is c o n s in 's manifest injustice standard, assuming the existence of all e le m e n ts but the final "reasonable probability" that a trial would result in a different o u tc o m e . (Resp't's Answer Ex. N, at 4). In so determining, it implicitly applied a s ta n d a rd in line with the Supreme Court's materiality of evidence test in Brady. The a p p e lla te court found a "reasonable probability" lacking due to the sufficiency of the re m a in in g evidence in convicting Johnson. Id. at 4-5. Thus, the decision was not c o n tra ry to federal law, as it applied correct Supreme Court precedent, and it was n o t an unreasonable application, as the sufficiency of all the other evidence re a s o n a b ly supports a finding of immateriality of the evidence. Therefore, this court w ill deny Johnson relief on this ground. V. IN E F F E C T IV E ASSISTANCE IN CHALLENGING IDENTIFICATIONS F in a lly , Johnson challenges his trial counsel's failure to properly crosse xa m in e two witnesses, Harris and Cooley, regarding their identification of Johnson. (P e t'r's Br. in Supp. 20-22). The appellate court adjudicated this claim on the merits

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a s well. The court identified the Strickland standard (Resp't's Answer Ex. G, at 5), a n d then determined that trial counsel's performance was not deficient. Id. at 5-6, 8 . The court first noted that counsel is not ineffective if there is no error regarding in -co u rt identification. The court then determined there was no error and, further, tha t trial counsel explored the issue on cross-examination. Further, the court

o b s e rve d that trial counsel also explored inconsistencies between Harris and C o o le y's trial testimony and prior out-of-court identifications of Johnson. Thus, as th e appellate court properly identified Strickland, its decision was not contrary to fe d e ra l law, and its application was not unreasonable. Therefore, this court must d e n y this ground for relief. T h e court has not found that any of the stated grounds are deserving of relief u n d e r §§ 2254 or 2243. Thus, the court will deny the petition, but in doing so it must d e te r m in e whether to grant Johnson a certificate of appealability. A district court m u s t either grant or deny a certificate of appealability when it enters a final order a d ve rs e to the applicant on a habeas petition. Rules Governing Section 2254 P r o c e e d in g s in the United States District Courts, R. 11(a). A habeas petitioner who s e e k s to appeal an unfavorable decision must first obtain a certificate of a p p e a la b ility . 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b). However, a district court m a y only issue a certificate of appealability to a habeas petitioner if he makes a s u b s tan tia l showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). F o r the reasons discussed above, Grady fails to make a substantial showing of the

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d e n ia l of his right to effective assistance of counsel and the court will deny him a c e rtific a te of appealability. A c c o r d in g ly , IT IS ORDERED that Johnson's petition for a writ of habeas corpus (Docket # 1 ) be and the same is hereby DENIED and the case is DISMISSED with p r e ju d ic e . The court also DENIES a certificate of appealability. T h e clerk is directed to enter judgment accordingly. D a te d at Milwaukee, W is c o n s in , this 30th day of September, 2010. BY THE COURT:

J .P . Stadtmueller U .S . District Judge

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