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Johnson v. Cain

United States District Court, E.D. Louisiana

September 9, 2019


         SECTION: "B"(5)



         This matter was referred to the undersigned United States Magistrate Judge to conduct a hearing, including an evidentiary hearing if necessary, and to submit proposed findings and recommendations for disposition pursuant to 28 U.S.C. § 636(b)(1)(B) and (C), and as applicable, Rule 8(b) of the Rules Governing Section 2254 Cases in the United States District Courts. Upon review of the entire record, the Court has determined that this matter can be disposed of without an evidentiary hearing. See 28 U.S.C. § 2254(e)(2). For the following reasons, IT IS RECOMMENDED that the petition for habeas corpus relief be DISMISSED WITH PREJUDICE.

         Procedural History

         Petitioner, Jeremy Johnson, is a convicted inmate currently incarcerated at the Louisiana State Penitentiary in Angola, Louisiana. On February 6, 2003, Johnson and co-defendant, Quantrell Kelson, were indicted for second-degree murder.[1] On June 8, 2005, a jury found them both guilty of the responsive verdict of manslaughter.[2] On June 15, 2005, the trial court sentenced Johnson to a 40-year term of imprisonment at hard labor.[3] The State filed a multiple bill of information.[4] On August 4, 2005, Johnson's motion for new trial, motion to quash the multiple bill and motion for reduction of sentence were denied. His original sentence was vacated. The trial court sentenced him as a second-felony offender to a 50-year term of imprisonment at hard labor. His motion to reconsider the enhanced sentence was denied.[5]

         Johnson and his co-defendant were both granted direct appeals, but due to Hurricane Katrina, all relevant transcripts of the proceedings were unavailable. With no meaningful appellate review of their convictions possible, the court of appeal vacated both manslaughter convictions and sentences and remanded the case to the trial court for further proceedings.[6]

         On December 21, 2007, the State filed a substitute bill of information charging Johnson and his co-defendant with manslaughter.[7] In January 2008, Kelson moved to sever the defendants. The trial court granted the motion over the State's objection.[8] On December 15, 2008, a jury found Johnson guilty of manslaughter. On December 22, 2008, the trial court sentenced him to 40 years' imprisonment at hard labor without benefit of probation, parole or suspension of sentence.[9] He was subsequently adjudicated as a second-felony offender. The trial court vacated the original sentence and imposed an enhanced sentence of 80 years' imprisonment at hard labor.[10] The defense objected to the excessiveness of the sentence. Johnson appealed.

         On direct appeal, he asserted the following four assignments of error: (1) the trial court erred in denying his repeated objections regarding the conflict of interest presented by his defense counsel, which prevented him from having a fair trial; (2) the trial court erred in denying his two motions for mistrial when jury prejudice made it impossible for him to receive a fair trial; (3) the trial court erred in denying his motion to suppress the identification; and (4) his sentence was constitutionally excessive, a harsher sentence was vindictively imposed upon retrial, and the trial court erred in adjudicating him a second-felony offender. On May 26, 2010, the Louisiana Fourth Circuit Court of Appeal affirmed his conviction and sentence.[11] He did not file an application for writ of certiorari with the Louisiana Supreme Court.

         On May 13, 2011, his retained attorney C. Gary Wainwright submitted an application for post-conviction relief to the state district court on Johnson's behalf.[12] In that application, he asserted the following claims: (1) the evidence was insufficient to support his conviction for manslaughter; (2) the 80-year sentence was unconstitutionally excessive and harsher than the sentence originally imposed; and (3) he was denied the right to effective assistance of counsel due to a conflict of interest. On June 28, 2012, while the application was pending Wainwright was suspended from the practice of law for 18 months. On March 25, 2013, the district court denied relief. The district court reasoned:

The Fourth Circuit denied each of the Petitioner's claims for relief, which are the exact claims now being raised by Petitioner in the instant Application for Post-Conviction Relief [and] pursuant to La. C.Cr.P. art. 930.4, any claim for relief which was fully litigated in an appeal from the proceedings leading to the judgment of conviction and sentence shall not be considered.[13]

         Martin Regan, Jr. enrolled as counsel of record for Johnson and filed a notice of intent to seek writs from the March 2013 ruling denying post-conviction relief. The district court set a return date of April 25, 2013. Meanwhile, on April 18, 2013, counsel filed a "Motion to File Memorandum in Support of Claimed Basis for Relief," in which he requested 30 days to file a supplemental memorandum "amplifying the facts underpinning the legal basis upon which Mr. Johnson seeks post-conviction relief." On May 15, 2013, counsel filed a supplemental memorandum to amend the post-conviction application to include five additional claims: (1) the trial court failed to instruct the jury as requested on the responsive verdict of negligent homicide; (2) the trial court erroneously denied him the ability to confront and cross-examine the State's sole eyewitness with her conflicting and inconsistent grand jury testimony; (3) the State knowingly presented false testimony (Napue); (4) ineffective assistance of trial counsel for failing to introduce expert testimony regarding his mental health during the suppression hearing; and (5) ineffective assistance of appellate counsel for failing to raise issues on direct appeal with respect to claims one through three.[14] He was also granted two more extensions of time, until June 24, 2013, in which to file his application for writs to the Louisiana Fourth Circuit Court of Appeal. On June 24, 2013, the district court issued a ruling denying his proposed amendments to the post-conviction relief application, which had been denied in March.[15]

         He timely filed his related writ application challenging the March 2013 ruling with the Louisiana Fourth Circuit Court of Appeal. He later submitted a copy of the district court's June 24, 2013 ruling denying his amended and supplemental claims. On October 14, 2013, the Louisiana Fourth Circuit Court of Appeal denied relief, stating:

Relator seeks review of the trial court's March 25, 2013 denial of his application for post-conviction relief. Finding no error in the trial court's ruling the writ application is denied.[16]

         Johnson filed a counseled supervisory writ application with the Louisiana Supreme Court.[17]On October 10, 2014, the Louisiana Supreme Court denied relief without citing additional reasons.[18]

         During the time these writ applications were pending Johnson continued to pursue relief in the state district court. On August 2, 2013, Regan filed a second counseled postconviction application with the state district court.[19] This application included the same five claims the district court had rejected when he belatedly tried to expand the scope of the first application for post-conviction relief. In January 2015, supplemental exhibits were filed for consideration.[20]

         While that post-conviction application was pending, on November 21, 2014, counsel on his behalf filed a federal application for relief in this Court. In that application, he raised eight claims for relief: (1) the evidence was insufficient to support the conviction; (2) the sentence was unconstitutionally excessive and vindictive; (3) ineffective assistance of trial counsel due to a conflict of interest; (4) the trial court failed to instruct the jury on negligent homicide; (5) the trial court refused to allow the defense to use a grand jury transcript during cross-examination in violation of due process and his right to confrontation; (6) the State failed to present the conflicting version in the grand jury transcript and exploited false testimony by a state witness; (7) trial counsel was ineffective for failing to call a psychiatric witness during the suppression hearing; and (8) appellate counsel was ineffective for failing to raise several claims on direct appeal. Johnson sought and was granted a stay of his federal proceedings based on the pending state-court application for post-conviction relief, which included additional claims for relief.[21]

         On or about October 30, 2015, Wainwright was substituted as counsel of record for Regan in the state-court post-conviction proceedings.[22] In February 2016, the district court ordered the State to file any procedural objections to the pending application for postconviction relief. On March 4, 2016, the State filed its procedural objections and asserted that summary dismissal was proper under Louisiana Code of Criminal Procedure articles 930.4 and 930.8.[23] On January 31, 2017, the district court granted the State's procedural objections and denied relief on those grounds.[24] On April 25, 2017, his related writ application was denied without stated reasons by the Louisiana Fourth Circuit.[25] On April 27, 2018, the Louisiana Supreme Court likewise denied relief.[26]

         On May 23, 2018, Johnson moved to vacate the stay and proceed with his federal application.[27] The motion was granted and the State was ordered to file its response.[28]On September 20, 2018, the State filed a response to the federal application.[29] The State's response concedes that the federal application is timely, but argues that the claims are unexhausted and procedurally defaulted.

         On March 14, 2019, the Court ordered the parties to submit supplemental briefing on the issue of vindictiveness of the sentence.[30] The State filed its supplemental brief on April 18, 2019 and Johnson filed his counseled supplemental brief on April 24, 2019.[31]


         On direct appeal, the Louisiana Fourth Circuit summarized the facts adduced at trial as follows:

On the night of December 5, 2002, Louis Kaplan was severely beaten in his Algier's apartment and left in a trash dumpster. Although he was still alive when the police found him, Mr. Kaplan died a few days later in the hospital. The forensic pathologist who performed the autopsy determined the cause of death to be blunt force trauma.
On the night in question, the New Orleans Police Department ("N.O.P.D") received several 911 calls concerning this crime. Gesielle Rousell, N.O.P.D. Assistant Communications supervisor, identified an audiotape of one of the 911 calls received on December 5, 2002, from the crime scene (3800 Texas Drive in Algiers). The caller (Keisha Price) said she was sleeping at her boyfriend's apartment and woke up to find blood all over the apartment. The caller reported "two black males, no description given." The caller further reported that she jumped out of the window, that her boyfriend possibly was injured inside, and that it was unknown if the subjects were still inside. The call was documented as a report of "unknown trouble."
N.O.P.D. Officer Richard Sasnett testified that he and his partner responded to the report of unknown trouble. In route to the scene, they were flagged down by a female (later identified as Ms. Price) about a block and a half from the apartment. Ms. Price was hysterical, hyperventilating, and having trouble communicating. After the officers calmed her down, Ms. Price described the two suspects who beat up her boyfriend, Mr. Kaplan, as two black males. The first one was six feet tall, weighing one hundred and fifty pounds, and wearing a gray hooded sweatshirt. The second one was about five feet ten inches tall, weighing one hundred and eighty pounds, and wearing all dark clothing. Ms. Price also reported that the first one (the six foot tall individual) came into the bedroom where she was sleeping and that he had a gun.
After speaking with Ms. Price, Officer Sasnett testified that they broadcast the information they obtained from her regarding the two suspects over the police radio and relocated to the apartment. Officer Sasnett entered the apartment, and his partner stayed in the police vehicle with Ms. Price. Officer Sasnett described the apartment as a very bloody scene and characterized it as probably one of the worst crime scenes he had ever seen. Explaining the layout of the apartment complex, Officer Sasnett stated that it was part of a four-plex with two apartments downstairs and two upstairs; Mr. Kaplan's apartment was one of the upstairs apartments. There was a common entrance with stairs to the two upstairs apartments, and a foyer in between them. Officer Sasnett testified that they found a large pool of blood around the front steps of the apartment complex itself, bloody prints and splatters all the way up the common staircase leading up to Mr. Kaplan's apartment, and blood all over the front door of the apartment. He testified that "it was obvious that a big fight had taken place because the furniture had been knocked over and there was blood splattered all over the main room of the apartment."
On cross-examination, Officer Sasnett testified that the lights were on in the apartment when he arrived. He believed another unit had arrived before him and that the officers in that unit had gone to look for the victim. The victim, Mr. Kaplan, was discovered in a dumpster fifty yards away from the apartment complex.
N.O.P.D. Officer Brian Sullivan testified that his unit was the first one to respond to the report of unknown trouble. When he and his partner arrived at the apartment, the front door was open, the lights were on, but no one was inside. Large puddles of blood were on the carpet, and blood was spattered on the wall. Officer Sullivan decided to canvass the area and to attempt to locate a blood trail that would lead him to the bleeding victim. As he was exiting the apartment complex, an unidentified black male, who was standing across the street, flagged him down. Officer Sullivan characterized the man's demeanor as that of a concerned witness. The unidentified man informed him that the victim's body was in a dumpster and pointed him in the direction in which the suspects had fled.
Officer Sullivan testified that he immediately relocated to the dumpster and heard a moaning noise. He looked inside the dumpster and observed several garbage bags and a white sock that appeared to have blood on it. When he removed the garbage bags, he observed a white male, who was in very bad condition. The victim had a large laceration on his throat, was badly beaten, and was wearing only his underwear and socks. Emergency Medical Service ("EMS") and the New Orleans Fire Department arrived on the scene, flipped the dumpster on its side, and removed the victim. The victim was transported to the hospital where he died a few days later. Although Officer Sullivan returned to the spot where he had spoken to the unidentified witness ten minutes earlier, he was unable to find that witness.
N.O.P.D. Sergeant Keith Joseph, Sr., testified that he also responded to the report of unknown trouble. While he was taking a statement from Ms. Price at the crime scene, Sergeant Joseph was notified by other officers that two possible suspects had been detained. He instructed the officers to bring the suspects back to the scene so that the eyewitness, Ms. Price, could identify them. Describing the identification procedure, Sergeant Joseph testified that Ms. Price was seated in the rear of an unmarked police unit on the scene with a detective. The suspects were brought before her one-by-one and illuminated. Ms. Price identified them as the two individuals who beat up the victim, dragged him down the steps, and threw him into a dumpster. On cross-examination, Sergeant Joseph acknowledged that the suspects were in handcuffs at the time the identifications were made.
N.O.P.D. Officer Edgar Baron responded to a call of suspicious activity—two subjects dumping a body in a dumpster on Texas Street. As he was in route to the scene, he spotted two men (later identified as Mr. Johnson and Mr. Kelson) that fit the description of the suspects that was broadcasted over the police radio. One man was dressed in dark clothing; the other man was dressed in sweatpants, a gray sweatshirt, and a dark headband. Officer Baron, who was in plainclothes, stopped his unmarked police unit and identified himself as a police officer. When he had the door of his vehicle open, the two men were near the front of his vehicle. At that point, Officer Baron was able to see their faces. The two men then fled. Officer Baron caught Mr. Johnson without ever losing sight of him. As he was returning to his vehicle with Mr. Johnson in custody, Officer Baron noticed the other man running in the back of an apartment complex. He also noticed that the other man had removed a garment of clothing (his top).
The suspects were apprehended five to ten minutes after the initial broadcast of the incident and only four or five blocks away from the crime scene. Officer Baron drove Mr. Johnson back to the crime scene for an on-the-scene identification procedure. He displayed Mr. Johnson un-handcuffed outside the police car. Other officers illuminated Mr. Johnson with a spotlight. Following the identification, Officer Baron placed Mr. Johnson under arrest for aggravated battery and transported him to the detective's division at the police station.
At the police station, Mr. Johnson requested to use the restroom. Fearing Mr. Johnson might dispose of evidence in the restroom, Officer Baron performed an extremely thorough check of him. Officer Baron noticed that Mr. Johnson had wet blood on both of his shoes and socks, and seized those items. Officer Baron refreshed his memory with his notes regarding the conversation between him and Mr. Johnson that followed; he testified:
The exact verbiage I was given was, "Please just let me go to the bathroom and clean my bloody shoes off"—excuse me, "and clean the blood off my shoes. Nobody has to know." He then advised me that the victim was a—he was a victim of the game and that he had to kill the individual known to him as Paco. He stated that "Paco was a player in the game and he tried to get out on a funny style so, I was ordered to do a hit on him by the man." He went on to tell me that he was friends with Paco and that they grew up together and attended school together as kids. He additionally advised me that he had never been convicted of any crimes due to his connections with the FBI. Johnson stated that he could have any witnesses of his crime killed by the man. Then he asked me to consider just hiding the shoes for the detectives and he would greatly reward me.
Officer Baron also testified that when Mr. Johnson was apprehended he was wearing his sweatpants turned inside out. After Mr. Johnson's clothing was taken from him at booking, his sweatpants were turned right-side out and what appeared to be blood was found on the exterior side. Once the detectives arrived and took custody of Mr. Johnson, Officer Baron left the office to check whether Mr. Kelson had the same type of substance on his clothing which he believed to be blood. He learned that Mr. Kelson also had that same type of substance on his clothing. On cross-examination, Officer Baron testified that Mr. Johnson did not resist arrest.
Officer Baron was questioned about errors in the listing of evidence on the police properly room evidence list. One error was the failure to list Mr. Johnson's shoes despite that the shoes were in the properly room with other evidence in the case. A second error was the failure to list a key chain until nineteen days later; Officer Baron testified that the key chain may have been inside of a pocket where he did not notice it initially. A third error was the gray sweatshirt was listed as gray sweatpants, and a white headband was listed as white socks. Officer Baron denied adding any evidence into the Evidence and Property Room for the case.
Former N.O.P.D. Homicide Detective Thomas Redmond testified that he worked on this case after Mr. Kaplan died. (The case was originally not a homicide case because Mr. Kaplan did not die until a few days after the crime occurred.) Detective Redmond stated that the police received three 911 calls on the night of the incident: one from Ms. Price, another from Marlene Taylor, and a third call from an unidentified caller. Ms. Taylor's call was in reference to her son having seen part of the event at the Algiers apartment. Detective Redmond testified that he spoke with Ms. Taylor and that she relayed the part of the event that she had seen. She also relayed that her son, who alerted her to what was happening had seen "a good bit of the event." Ms. Taylor informed the police that her son had gone to Texas. Despite multiple attempts to reach Ms. Taylor's son, Detective Redmond testified that they were unable to locate him. On cross examination, Detective Redmond acknowledged that in his report he indicated that there was a possibility of a third suspect. Detective Redmond testified that some time after the incident he took a recorded statement from Ms. Price. Given the date of birth Ms. Price gave him in her statement, he calculated that Ms. Price was fourteen years old at the time she gave her statement.
Consistent with Detective Redmond's testimony, Ms. Price testified that she was fourteen or fifteen years old at the time of the killing. She testified that at the time of the incident she was staying with her boyfriend, Mr. Kaplan, in his apartment. She had been staying with him for about one or two months and was pregnant with his child. On the night of the incident she was sleeping in the bedroom of Mr. Kaplan's apartment, and he was in the living room with some friends. A man (later identified as Mr. Kelson) awoke her, told her to sit down, and grabbed her by her throat when she did not. Mr. Kelson then left the room, went into the living room, and left the bedroom door cracked open. At some point thereafter, Ms. Price went into the hallway. Ms. Price testified that she was unable to see exactly what the men were doing to Mr. Kaplan, but she was able to see that there was blood all over the room. She testified that she saw a man (later identified as Mr. Johnson) and Mr. Kelson had Mr. Kaplan pinned down on the sofa. Although the light was not on in the living room, she testified that the television was on and reflecting directly on the sofa where Mr. Kaplan was being beaten by Mr. Johnson and Mr. Kelson. Ms. Price testified that she saw Mr. Kaplan get loose at one point and start pulling on the front door knob, trying to get out. His shirt was ripped up and full of blood. She also testified that she heard the two men tell Mr. Kaplan to take it like a man.
Ms. Price described Mr. Johnson as wearing dark hooded clothing and Mr. Kelson as a tall, brown, skinny man who was wearing dark clothing. Ms. Price stated that at one point when she was observing what was happening Mr. Johnson noticed her, and she was able to see his face. Ms. Price said that Mr. Johnson and Mr. Kelson dragged Mr. Kaplan out of the apartment. She did not know what happened after that because once they left she ran, closed the door, and escaped through a window.
After jumping out of the window, Ms. Price spotted two women walking out of another apartment; she used their phone to call the victim's mother and 911. When the police arrived, Ms. Price testified that they put her in the rear of a police car. While seated in the police car, Ms. Price viewed Mr. Johnson and Mr. Kelson. She testified that the police had a light shining on the two men. She positively identified them by their clothing and their faces.
On cross examination, Ms. Price testified that she did not recall testifying at an earlier hearing that she never left the bedroom during the time the victim was being beaten. When confronted with her testimony from an earlier hearing when she said that she "didn't come completely out of the bedroom," Ms. Price replied that if she said it earlier it was true. Ms. Price also testified that the incident happened five years earlier and that she was unable to remember every detail, but she remembered the two men killing Mr. Kaplan. She testified that Mr. Johnson did most of the work because he was in the living room with Mr. Kaplan, and Mr. Kelson was in the bedroom with her. Ms. Price confirmed on redirect examination that she could see what was happening from where she was standing and that she never said there were more than two attackers.
At trial, Ms. Price identified photographs of Mr. Kaplan's apartment. She also positively identified Mr. Johnson as the man she saw pinning down the victim on the sofa and hitting the victim. When asked how certain she was that Mr. Johnson was one of the perpetrators, Ms. Price replied that she was a thousand percent certain.
Lucia Kaplan, the victim's mother, testified that on the night Mr. Kaplan was killed she received a call from Ms. Price. She and her husband went to the hospital that night. At the hospital, she recognized the body of her badly beaten son only by the tattoo on his arm. She knew Mr. Johnson and Mr. Kelson from the neighborhood. She testified that they used to hang around with her son.
Dr. Mary Jo Wright was stipulated to be an expert in trauma and critical care. Dr. Wright testified that she was the attending trauma call surgeon who treated Mr. Kaplan at the hospital. According to Dr. Wright, Mr. Kaplan was comatose and his drug screen was negative. He had a large slash wound on his right neck, a footprint on his chest, was barely breathing had no diastolic blood pressure, and had lost a lot of blood. His right eye was swollen completely shut. He had a nasal fracture and eye socket fracture, and his nose had to be packed to stop the bleeding. A CAT scan of his brain revealed subdural hematomas and swelling. Dr. Wright said the head trauma was so severe that his brain essentially began to swell. Although a tube was placed to drain fluid from his brain, the swelling continued and he was pronounced dead.
N.O.P.D. Crime Scene Technician Sidney Street testified that on December 5, 2002, he was called to the crime scene. Ms. Street identified her crime scene report, a number of photographs depicting the crime scene, and articles of evidence collected at the scene and other nearby locations. Two knives were collected in the grass outside the victim's apartment building. Ms. Street testified that she was unable to lift fingerprints from either of the knives because of the items' surfaces, the way the blood was smeared, and fluids on the knives. She did not recover any fingerprints from the scene because she determined that no suitable prints could be lifted.
Former N.O.P.D. Criminalist Officer Joseph Taffaro testified that he tested clothing from Mr. Johnson and Mr. Kelson for the presence of blood. Blood was found on Mr. Johnson's green jogging pants, red T-shirt, gray boxer shorts, gray socks, and right and left gray/black Nike tennis shoes. Blood was also found on Mr. Kelson's blue jeans, FUBU sweater, and blue boxer shorts. Officer Taffaro cut samples for testing from the foregoing blood stained articles of clothing and tennis shoes.
Anne Montgomery, who was stipulated to be an expert in the field of molecular biology and forensic DNA, testified that she compared DNA found on the clothing of Mr. Kelson and Mr. Johnson to the victim's DNA. DNA samples taken from the blood on Mr. Kelson's blue jeans and his FUBU sweater were consistent with the victim's DNA. However, DNA samples taken from the blood on one of Mr. Johnson's gray/black Nike tennis shoes and on Mr. Johnson's green jogging pants were both inconclusive, due to insufficient or excessively degraded DNA. The sample on Mr. Johnson's clothing thus was unable to be tested. Ms. Montgomery explained that heat, humidity, moisture, and mildew cause DNA to degrade. She noted that the evidence could have been improperly stored or not fully air-dried.
Dr. James Traylor was qualified by joint stipulation as an expert in the field of forensic pathology. He performed the autopsy on Mr. Kaplan's body. He described the injuries to Mr. Kaplan's head as severe. Mr. Kaplan also had multiple sharp force injuries, including sharp force defensive wounds and abrasions. Mr. Kaplan had various types of force injuries, but Dr. Traylor opined that the cause of his death was blunt force injuries, the mechanism being cerebral edema.[32]

         Preliminary Review - Procedural Default

         The Court first considers the State's assertion that Johnson's habeas claims are procedurally barred from federal review because he failed to exhaust his remedies in the state courts. The State argues that as to his first three claims, Johnson failed to assert them in the state's highest court. A review of the record shows that Johnson raised two of the claims, i.e., sentencing and conflict of interest, on direct appeal in the Louisiana Fourth Circuit, but then did not file an application for certiorari with the Louisiana Supreme Court. He never raised a claim of insufficient evidence as part of his direct appeal.

         He then raised all three claims on collateral review in his application for postconviction relief filed with the state district court. The state district court denied the claims, citing Louisiana Code of Criminal Procedure article 930.4 (A) ("any claim for relief which was fully litigated in an appeal from the proceedings leading to a judgment of conviction and sentence shall not be considered").[33] In the counseled writ application filed with the intermediate court of appeal, the three claims were set forth as part of the statement of the case, albeit the issue raised and argued was the alleged denial of due process because the trial court denied post-conviction relief sua sponte, without deciding his claims on the merits, even after the court was notified that counsel had been suspended and without any inquiry regarding whether petitioner had obtained new counsel or whether his application was complete. The appellate court found no error in the trial court's ruling and denied relief.

         Johnson then filed his related writ application with the Louisiana Supreme Court. Again, the claims focused on the procedural improprieties and due process violations associated with the state courts' rulings, rather than on the merits of the underlying substantive claims (which the state district court had not decided). The writ application did include arguments about ineffective assistance of counsel associated with the conflict of interest and the imposition of a more severe sentence after retrial, but omitted discussion about the sufficiency of the evidence. Nonetheless, the application itself clearly set forth the three claims upon which the writ application was premised and asserted that the claims raised in his post-conviction application were wrongfully summarily denied.[34] Therefore, contrary to the State's assertion, Johnson's first three claims were properly exhausted on collateral review.

         Furthermore, the Court finds no basis for a procedural bar to federal review of the first three claims for relief. The State correctly notes that the claims were denied by the state district court under Louisiana Code of Criminal Procedure article 930.4(A), which is not itself a bar to federal habeas review. Bennett v. Whitley, 41 F.3d at 1583. The state district court mistakenly reasoned that all three claims were fully litigated on appeal and cited the language from that statutory provision. The intermediate appellate court found no error in the district court's ruling. The Louisiana Supreme Court offered no further reasons for denying relief.[35] The Court declines to accept the State's attempt to single out the sufficiency claim as procedurally barred under Louisiana Code of Criminal Procedure article 930.4(C), for failing to pursue the claim on appeal, when the basis for the state district court's ruling was clearly Subsection (A). Even if incorrect as to the claim of insufficient evidence to convict (which contrary to the district court's ruling was not raised on direct appeal), this Court will not read into the ruling a different procedural basis for the state court's denial of relief under state law.

         The State also argues that Johnson failed to exhaust his available state remedies for the second group of claims, Nos. 4-8, and that even if exhausted, the claims were procedurally barred by the state courts and are not subject to federal habeas review. The Court agrees with that assertion given the procedural backdrop for these claims.

         Johnson first attempted to raise the claims by amending or supplementing his first application for post-conviction relief. He did so, however, only after the trial court had issued a ruling denying his application for post-conviction relief. In June 2013, the trial court rejected the proposed amendments filed nearly two months after the post-conviction application was denied as an improper attempt at "reconsideration," aimed at avoiding procedural limitations.[36] Johnson only filed a notice of intent to seek writs from the March 2013 denial of his post-conviction application, and he incorporated his argument related to the proposed amended claims in that writ application. He subsequently filed a copy of the district court's ruling with the appellate court in July 2013. However, the appellate court's ruling denying relief clearly encompassed only the March 2013 district court ruling from which Johnson filed his notice of intent to seek writs. The writ ruling stated, "Relator seeks review of the trial court's March 25, 2013 denial of his application for post-conviction relief. Finding no error in the trial court's ruling, the writ application is denied." The Louisiana Supreme Court denied relief on his related writ without additional stated reasons.

         In August 2013, Johnson filed a second application for post-conviction relief raising the additional claims for relief. The state district court denied relief under Louisiana Code of Criminal Procedure articles 930.4 (repetitive and successive) and 930.8 (untimely). In his counseled writ application to the Louisiana Fourth Circuit and the Louisiana Supreme Court, Johnson argued that the district court erred in denying his second post-conviction relief application as successive. He did not specify the underlying substantive claims, but he did incorporate them by reference to the attached exhibits and included a brief discussion regarding the grand jury transcript and the omitted responsive verdict. The state courts of appeal denied relief without additional stated reasons. See Ylst v. Nunnemaker, 501 U.S. 797, 802, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991) (when the last state-court judgment does not indicate whether it is based on procedural default or the merits of a federal claim, the federal court will presume that the state court has relied upon the same grounds as the last reasoned state-court opinion). Arguably then, the claims were properly presented and therefore exhausted. See, e.g., Miller v. Quinn, 307 Fed.Appx. 96, 98 (9th Cir. 2009) (finding exhaustion requirement was met when petitioner filed his petition raising the federal claims as an appendix to his motion for discretionary review). However, even if the claims were exhausted, the State correctly argues that the claims were expressly rejected by the state courts under Louisiana Code of Criminal Procedure articles 930.4 and 930.8, and thus are procedurally defaulted.[37]

         Generally, a federal court will not review a question of federal law decided by a state court if the decision of that state court rests on a state-law ground that is both independent of the merits of the federal claim and adequate to support that judgment. Coleman v. Thompson, 501 U.S. 722, 731-32 (1991); Glover v. Cain, 128 F.3d 900, 902 (5th Cir. 1997), cert, denied, 523 U.S. 1125 (1998); Amos v. Scott, 61 F.3d 333, 338 (5th Cir. 1995) (citing Harris v. Reed, 489 U.S. 255, 260, 262 (1989)). The United States Fifth Circuit Court of Appeals has held:

A claim that a state has withheld a federal right from a person in its custody may not be reviewed by a federal court if the last state court to consider that claim expressly relied on a state ground for denial of relief that is both independent of the merits of the federal claim and an adequate basis for the court's decision. To satisfy the "independent" and "adequate" requirements, the dismissal must "clearly and expressly" indicate that it rests on state grounds which bar relief, and the bar must be strictly or regularly followed by state courts, and applied to the majority of similar claims. This rule applies to state court judgments on both substantive and procedural grounds.

Finley v. Johnson, 243 F.3d 215, 218 (5th Cir. 2001) (citations omitted). The last reasoned state court ruling is used to make this determination. Ylst v. Nunnemaker, 501 U.S. at 803- 05.

         In the last reasoned state-court judgment, the state district court clearly and expressly rejected Johnson's claims on state-law procedural grounds, finding the claims untimely pursuant to Louisiana Code of Criminal Procedure article 930.8 and successive pursuant to Louisiana Code of Criminal Procedure article 930.4. It is well-settled that article 930.8 qualifies as an independent and adequate state-law procedural ground to support a procedural bar to review. Glover v. Cain, 128 F.3d at 902; see also Morris v. Cain, No. 06-30916, 2008 WL 3876479 (5th Cir. Aug. 20, 2008) (per curiam); Pineyro v. Cain, 73 Fed.Appx. 10, 11 (5th Cir. 2003). The United States Fifth Circuit Court of Appeals has held that denial of relief premised on the untimeliness of a claim under article 930.8 "is sufficient to fulfill the independence requirement" of the procedural default doctrine, and that article 930.8 is strictly and regularly followed and evenhandedly applied by Louisiana courts to the vast majority of similar claims. Glover, 128 F.3d at 902.

         The state courts also found the claims barred as repetitive and successive. The record shows that Johnson failed to raise the claims in his first application for postconviction relief. Johnson's counsel offered his explanation for the omission, but the district court reasoned, "Petitioner should have known of the errors complained of in this successive application. Further, the claims were contained in the appellate record and subsequently raised untimely by petitioner's counsel."[38] As the United States Fifth Circuit Court of Appeal has recognized, Louisiana Code of Criminal Procedure article 930.4(E) constitutes an independent and adequate state-law procedural ground to support a procedural bar to review. Ardison v. Cain, 264 F.3d 1140, 2001WL 822445, at *4-5 (5th Cir. 2001); Besse v. Tanner, Civ. Action No. 16-2992, 2017 WL 2936311, at *8 (E.D. La. July 7, 2017); Bell v. Baton, Civ. Action No. 11-0304, 2012 WL 5364239, at *3 (M.D. La. Sep. 24, 2012), adopted, 2012 WL 5364237, at *1 (M.D. La. Oct. 31, 2012) (concluding that Article 930.4(E) has been found to be an adequate, independent state ground for rejecting a petition for post-conviction relief, and the federal courts have relied upon this statute in finding claims to be technically exhausted but procedurally defaulted).

         Because the last reasoned state-court decision rested expressly upon an independent and adequate state rule of procedural default, this Court may not review the instant claim unless petitioner demonstrates cause for the default and actual prejudice or a fundamental miscarriage of justice. Glover v. Cain, 128 F.3d at 902 (citing Coleman, 501 U.S. at 731-32); Amos v. Scott, 61 F.3d at 338-39 (citing Harris v. Reed, 489 U.S. 255, 262 (1989) and Engle v. Isaac, 456 U.S. 107, 129, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982)). Johnson has demonstrated neither.

         To establish cause for a procedural default, a petitioner must demonstrate that some objective factor external to the defense impeded his efforts to comply with the state's procedural rule. Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). The mere fact that a petitioner or his counsel failed to recognize the factual or legal basis for a claim, or failed to raise the claim despite recognizing it, does not constitute cause for a procedural default.[39] Id. at 486. The inexplicable omission by Johnson's retained post-conviction counsel in failing to recognize and raise the five claims earlier does not constitute cause. To the extent Johnson may try to justify post-conviction counsel's oversight based on direct appellate counsel failing to raise the claims on direct appeal and making the claims harder for post-conviction counsel to spot initially, that assertion fails to demonstrate sufficient cause. Plainly, any alleged failure on the part of appellate counsel does not absolve retained post-conviction counsel's independent duty to his client in filing a post-conviction application.

         In Martinez v. Ryan, 566 U.S. 1, 16-18 (2012), the Supreme Court carved out a narrow exception to the procedural default rule only for claims of ineffective assistance of trial counsel when post-conviction review is the first time a petitioner can bring such claims, and petitioner had either ineffective collateral review counsel or no counsel at all. Johnson raises one claim of ineffective assistance of trial counsel for failing to call an expert psychiatric witness during the hearing on the motion to suppress his statement.

         The record includes an affidavit by state post-conviction counsel in which he states he made an "egregious error" in overlooking this claim, among others, when he filed the initial post-conviction relief application. Even assuming state post-conviction counsel's performance was ineffective, however, the applicability of Martinez is conditioned upon him showing that the ineffective-assistance-of-trial-counsel claim is "a substantial one," insofar as having "some merit." Martinez, 566 U.S. at 14 (citing Miller-El v. Cockrell, 537 U.S. 322 (2003)). Johnson has not met that burden.

         He alleges that during the suppression hearing trial counsel failed to present expert testimony regarding his mental condition. He claims that his "mental illness" was documented and shown by the fact that counsel moved for a competency determination at the start of this case and that he was ordered, as part of an earlier 2002 guilty plea that included probation, to receive mental-health treatment and counseling.

         As the United States Fifth Circuit Court of Appeals has explained:

Claims that counsel failed to call witnesses are not favored on federal habeas review because the presentation of witnesses is generally a matter of trial strategy and speculation about what witnesses would have said on the stand is too uncertain. For this reason, we require petitioners making claims of ineffective assistance based on counsel's failure to call a witness to demonstrate prejudice by naming the witness, demonstrating that the witness was available to testify and would have done so, setting out the content of the witness's proposed testimony, and showing that the testimony would have been favorable to a particular defense. This requirement applies to both uncalled lay and expert witnesses.

Woodfox v. Cain, 609 F.3d 774, 808 (5th Cir. 2010) (citations, quotation marks, and brackets omitted); accord Day v. Quarterman, 566 F.3d 527, 538 (5th Cir. 2009) ("[T]o prevail on an ineffective assistance claim based on counsel's failure to call a witness, the petitioner must name the witness, demonstrate that the witness was available to testify and would have done so, set out the content of the witness's proposed testimony, and show that the testimony would have been favorable to a particular defense."). For the following reasons, Johnson has failed to establish ineffective assistance under Strickland.

         Johnson has presented no evidence demonstrating that an expert was available and would have testified that he had a mental health condition, much less one which prevented him from being capable of understanding or waiving his Miranda rights before making a statement to police. Johnson has not identified any expert witness who was available and willing to testify. Nor has he set forth the content or substance of the expert witness' proposed testimony. As a result, he cannot establish that his counsel was ineffective for failing to present the testimony of a purely theoretical expert. Anthony v. Cain, Civ. Action No. 07-3223, 2009 WL 3564827, at *8 (E.D. La. Oct. 29, 2009) ("This Court may not speculate as to how such witnesses would have testified; rather, a petitioner must come forward with evidence, such as affidavits from the uncalled witnesses, on that issue"). For this reason alone, his claim fails.

         Additionally, the Court finds little support in the record to support Johnson's claim of mental illness. The Court notes that with respect to his statement that he was found incompetent to proceed with trial, the reports issued by the sanity commission suggest he was likely malingering and simply unwilling to cooperate with the medical professionals tasked with evaluating his competency to proceed, forcing the two initial declarations of incompetency in March and May 2003.[40] The report from ELMHS also confirmed feigned psychiatric symptoms.[41] Once he was more cooperative with the court-appointed examiners in November 2003, he was found competent to proceed.[42] The objective findings in this case do not support his assertion that Johnson suffers from a mental illness.

         Johnson has not established a meritorious ineffective-assistance-of-trial-counsel claim. Thus, he cannot rely on the Martinez exception to excuse the procedural default at issue.

         In this case, Johnson has not offered any cause for the default which would excuse the procedural bar imposed by the state court. "The failure to show 'cause' is fatal to the invocation of the 'cause and prejudice' exception, without regard to whether 'prejudice' is shown." Hogue v. Johnson, 131 F.3d 466, 497 (5th Cir. 1997) (citing Engle v. Isaac, 456 U.S. 107, 134 n. 43 (1982)).

         Because Johnson has not satisfied the "cause and prejudice" test, this Court must determine whether the application of the procedural bar would result in a fundamental miscarriage of justice. A petitioner makes such a showing only if he establishes as a factual matter that he is "actually innocent" of the crime of conviction. Williams v. Thaler, 602 F.3d 291, 307 (5th Cir. 2010) (citing Schlup v. Delo, 513 U.S. 298, 326-27 (1995)); McGowen v. Thaler, 675 F.3d 482, 499 (5th Cir.), cert, denied, 133 S.Ct. 647, 648 (2012) (citing Finley v. Johnson, 243 F.3d 215, 220 (5th Cir. 2001) and Fairman v. Anderson, 188 F.3d 635, 644 (5th Cir. 1999)).

         When a petitioner has not adequately asserted his actual innocence, however, his procedural default cannot be excused under the "fundamental miscarriage of justice" exception. Glover, 128 F.3d at 903. Johnson does not present any claim in support of actual innocence, and the record contains nothing that suggests his actual innocence on the underlying conviction. Because Johnson has failed to overcome the procedural default, claims 4-8 should be dismissed on that basis.

         Standards of Review on the Merits

         Title 28 U.S.C. § 2254(d)(1) and (2), as amended by The Antiterrorism and Effective Death Penally Act of 1996 (AEDPA), provides the applicable standards of review for pure questions of fact, pure questions of law, and mixed questions of both. A state court's purely factual determinations are presumed to be correct and a federal court will give deference to the state court's decision unless it "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)(2); see also 28 U.S.C. § 2254(e)(1) ("In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence."). With respect to a state court's determination of pure questions of law or mixed questions of law and fact, a federal court must defer to the decision on the merits of such a claim unless that decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1).

         The "'contrary to' and 'unreasonable application' clauses [of § 2254(d)(1)] have independent meaning." Bell v. Cone, 535 U.S. 685, 694 (2002). A state-court decision is "contrary to" clearly established precedent if the state court applies a rule that contradicts the governing law set forth in the United States Supreme Court's cases or if the state court confronts a set of facts that is materially indistinguishable from a decision of the United States Supreme Court and nevertheless arrives at a result different from United States Supreme Court precedent. Williams v. Taylor, 529 U.S. 362, 405-06 (2000); Wooten v. Thaler, 598 F.3d 215, 218 (5th Cir.), cert, denied, 131 S.Ct. 294 (2010). An "unreasonable application" of [United States Supreme Court] precedent occurs when a state court "identifies the correct governing legal rule... but unreasonably applies it to the facts of the particular state prisoner's case." Williams v. Taylor, 529 U.S. at 407-08; White v. Woodall, 572 U.S. 415, 426 (2014).

         It is well-established that "an unreasonable application is different from an incorrect one." Bell, 535 U.S. at 694. A state court's merely incorrect application of Supreme Court precedent simply does not warrant habeas relief. Puckett v. Epps,641 F.3d 657, 663 (5th Cir. 2011) ("Importantly, 'unreasonable' is not the same as 'erroneous' or 'incorrect'; an incorrect application of the law by a state court will nonetheless be affirmed if it is not simultaneously unreasonable.")- "[E]ven a strong case for relief does not mean the state court's contrary conclusion was unreasonable" under the AEDPA. Harrington v. Richter,562 U.S. 86, 102 (2011). Section 2254(d) preserves authority to issue the writ in cases where there is "no possibility fairminded jurists could disagree that the state court's decision conflicts with [United States Supreme Court] precedents." Id. at 102 (emphasis added); see also Renico ...

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