Johnson v. Pugh

Filing 59

ORDER signed by Judge Rudolph T Randa on 8/27/2012 Granting 39 & 43 Motion to Amend/Correct Petition; Denying 41 & 44 Motion for Evidentiary Hearing; Denying 47 Motion for Summary Judgment; and Denying 1 Johnson's Petition for Writ of Habeas Corpus. This matter is Dismissed. (cc: all counsel, via US Mail to Petitioner) (nts)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

STEVEN JOHNSON,
Petitioner,
-vs-

Case No. 11-C-865

JEFFREY PUGH, Warden,
Stanley Correctional Institution,
Respondent.

DECISION AND ORDER

Steven Johnson challenges his conviction in state court for robbing a bank by threat
of force. The bank teller, Alisha Harvey, told police that “an individual entered the bank ...
where she was working. The individual had his face partially covered by a mask, came up
to her teller window, and slammed an item that she believed may have been a cane or some
other type of weapon on the top of her desk and demanded money. She . . . opened the
drawer and the defendant then took the money from her presence and she allowed him to do
so because of his conduct threatening force against her.” Johnson himself confessed to the
crime, telling police that he “had in fact gone to the [bank] because he needed money. He
stated that he had taken a plastic type mat, had rolled it up so that it may have appeared to
be a cane or another weapon, slammed it on the counter at the . . . bank and demanded money
from the teller. He stated that the teller did in fact turn money over to him and that when he
exited the bank, an alarm went off and he ended up throwing part of the money to stop the
alarm and the rest of the money was used for the purchase of drugs.”

Johnson was found guilty after a jury trial, where the jury received the following
evidence: (1) surveillance video taken by the bank during the robbery; (2) testimony of
Rhonda Holmes, a friend of Johnson, who identified him as the individual in the surveillance
video; (3) testimony that DNA evidence linked Johnson to the robbery; and (4) Johnson’s
tape recorded confession to police. Johnson raised several claims on direct appeal, all of
which were found by the court of appeals to be “wholly without merit.” State of Wisconsin
v. Johnson, No. 2010AP987-CR (Wis. Ct. App. May 24, 2011), at 2. Johnson timely filed
the instant petition, and after an initial review, the Court identified four cognizable claims
for relief: (1) that he was arrested without probable cause; (2) that the identification by
Rhonda Holmes was unreliable; (3) that he was never advised of his constitutional rights
before his confession; and (4) that he was denied his right to self-representation.
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) governs the
review of state court convictions in federal habeas corpus proceedings. A federal court may
grant habeas relief only if the state court’s decision was “contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the Supreme
Court of the United States” or “was based on an unreasonable determination of the facts in
light of the evidence presented.” 28 U.S.C. § 2254(d). A state court decision is “contrary
to” federal law if the state court either incorrectly laid out governing United States Supreme
Court precedent or decided a case differently than a factually and materially indistinguishable
Supreme Court case. § 2254(d)(1). A state court unreasonably applies Supreme Court
precedent when it correctly identifies the governing legal rule but unreasonably applies it to

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the facts of a case; unreasonably extends a legal principle from the Supreme Court’s
precedent to a new context in which it should not apply; or unreasonably refuses to extend
that principle to a new context in which it should apply. § 2254(d)(1); Ellison v. Acevedo,
593 F.3d 625, 632 (7th Cir. 2010).
Arrest without probable cause. Whether the police had probable cause to arrest
Johnson is not cognizable in habeas corpus unless the State did not provide a full and fair
opportunity to litigate the issue. Stone v. Powell, 428 U.S. 465, 494 (1976). Setting aside
the rule in Stone, Johnson’s claim is without merit in the first instance because his arrest was
clearly supported by probable cause. As the court of appeals explained, “at the time he
arrested Johnson, Officer Strasser had a video of a man matching Johnson’s description
robbing a bank and an acquaintance of Johnson’s had identified him as the man in the video.
The video, coupled with the identification, is enough evidence to ‘lead a reasonable police
officer to believe that [Johnson] probably committed . . . a crime.’ In other words, Officer
Strasser had probable cause to arrest Johnson without a warrant.” ECF No. 37-5, at 6.
Identification from surveillance tape. With respect to identification procedures, due
process is primarily concerned with the substantial likelihood of misidentification. United
States v. Hawkins, 499 F.3d 703, 707 (7th Cir. 2007) (citing Neil v. Biggers, 409 U.S. 188,
198 (1972)).

“The admission of testimony concerning a suggestive and unnecessary

identification procedure does not violate due process so long as the identification possesses
sufficient aspects of reliability.”

Manson v. Braithwaite, 432 U.S. 98, 106 (1977).

Therefore, the court conducts a two-step analysis: first, the defendant must establish that the

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identification procedure was unduly suggestive; second, the court must determine, under the
totality of the circumstances, whether the identification was nonetheless reliable. United
States v. Rogers, 387 F.3d 925, 936 (7th Cir. 2004).
Here, the identification was made not by a witness to the crime, but by Johnson’s
friend, Rhonda Holmes, identifying Johnson as the individual robbing the bank in
surveillance video footage. Holmes “testified at trial that on the day of the bank robbery
Johnson had taken her car without permission. She identified the individual in the bank
surveillance video as Johnson, in considerable part relying upon the fact that Johnson was
wearing a hat that her mother had given her, which was in her car on the morning of the
robbery. She also recognized the shirt that Johnson was wearing as one he had been wearing
on the night before the robbery.” ECF No. 37-5, at 10-11. This was a reliable identification
that did not violate due process. See, e.g., United States ex rel. Calderon v. Washington, No.
87-C-6601, 1987 WL 17472, at *1 (N.D. Ill. Sept. 21, 1987) (“Unlike recollection of a
stranger encountered in the course of a crime, recognition of an acquaintance does not carry
with it a substantial likelihood of misidentification requiring further indicia of reliability to
ensure a fair trial . . .”).
Miranda claim. Johnson asserts in his petition that the arresting officer never advised
him of his constitutional rights. The court of appeals addressed this issue in a footnote:
“Throughout his brief, Johnson makes several passing references to his confession,
seemingly contending that he was not read his Miranda rights and that his confession was
otherwise coerced. However, he does not set forth this issue in his lengthy list of ‘Issues on

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Appeal’ . . . nor does he elaborate upon his claim, beyond making bold, unsubstantiated
assertions. As we have stated previously, we do not address issues that are inadequately
briefed and lack discernable merit.”

ECF No. 37-5, at 9 n.7.

Therefore, Johnson

procedurally defaulted this claim. “To avoid procedural default, ‘a habeas petitioner must
fully and fairly present his federal claims to the state courts.’ ‘Fair presentment requires the
petitioner to give the state courts a meaningful opportunity to pass upon the substance of the
claims later presented in federal court.’” Anderson v. Benik, 471 F.3d 811, 814 (7th Cir.
2006) (internal citations omitted).
Self-representation. The Sixth Amendment right to self-representation is wellestablished, but it is not absolute. Martinez v. Ct. of Appeal of Cal., Fourth Appellate Dist.,
528 U.S. 152, 161 (2000). In particular, the right does not protect defendants who abuse it
by disrupting judicial proceedings. Faretta v. California, 422 U.S. 806, 835 n.46 (1975).
In the pre-trial stage, the trial court initially granted Johnson’s motion to proceed pro se (with
the provision of standby counsel), but the State moved to reconsider in light of the issue of
DNA evidence. Johnson renewed his motion on the eve of trial, and the trial court denied
the motion again:
Johnson had almost four months after the May 2009 hearing to
familiarize himself with DNA evidence and to assist his counsel
in preparing for trial. Instead, he sat on his hands and told the
court in August 2009 that he was unaware that DNA evidence
was at issue, despite having been ordered by the court to give a
DNA sample in February 2009 and despite discussing his
competency to defend against DNA evidence during the May
2009 hearing. Johnson’s misrepresentation to the court
demonstrated an inability to grasp basic courtroom decorum and
ethics, and suggested that his desire to represent himself was an
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attempt to delay court proceedings and interfere with the
administration of justice. That Johnson’s desire to represent
himself was perhaps not sincere was confirmed by his refusal to
represent himself on all issues but DNA, and his belligerent
behavior towards the court after its ruling.
ECF No. 37-5, at 15. The foregoing is a reasonable application of Supreme Court precedent.
United States v. Joos, 638 F.3d 581, 587 (8th Cir. 2011) (“the right to self-representation
‘does not exist . . . to be used as a tactic for delay, for disruption, for distortion of the system,
or for manipulation of the trial process’”) (internal citation omitted).
Finally, outside of the four issues flagged by the Court’s initial screening order,
Johnson has attempted to amend his petition to assert a new claim: that the state did not
prove the elements of robbery by threat of force because the victim (the bank teller) did not
testify at trial. The Court agrees that the State “presented sufficient evidence during the trial
from which the jury could conclude beyond a reasonable doubt that Johnson robbed the bank
by threat of force, to wit: surveillance video, Holmes’s testimony identifying Johnson in the
video, DNA evidence, and Johnson’s confession (which the jury was free to accept as true
even if Johnson now denies its veracity).” ECF No. 37-5, at 17. This was a reasonable and
correct application of Supreme Court precedent. The argument that no rational trier of fact
could have found Johnson guilty after hearing his confession and seeing him commit the
crime on video is patently frivolous. “When a petitioner in a habeas action challenges the
sufficiency of the evidence, our task is to determine whether ‘after viewing the evidence in
the light most favorable to the prosecution, any rational trier of fact could have found the

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essential elements of the crime beyond a reasonable doubt.’” Barger v. State of Ind., 991 F.2d
394, 398 (7th Cir. 1993) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
In connection with this order, the Court must “issue or deny a certificate of
appealability . . .” Rule 11(a), Rules Governing Section 2254 Cases. The Court will not
issue a certificate because it is not debatable among reasonable jurists whether this petition
should have been resolved in a different manner or that the issues deserve encouragement to
proceed further. Slack v. McDaniel, 529 U.S. 473, 484 (2000); 28 U.S.C. § 2253(c)(2).
NOW, THEREFORE, BASED ON THE FOREGOING, IT IS HEREBY
ORDERED THAT:
1.

Johnson’s motions to amend/correct his petition [ECF Nos. 39, 43] are

GRANTED;
2.

Johnson’s motions for an evidentiary hearing [ECF Nos. 41, 44] are DENIED;

3.

Johnson’s motion for summary judgment [ECF No. 47] is DENIED; and

4.

Johnson’s petition is DENIED. This matter is DISMISSED. The Clerk of

Court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 27th day of August, 2012.
BY THE COURT:

__________________________
HON. RUDOLPH T. RANDA
U.S. District Judge

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