Johnson v. McKune, 00-3113.

• Decision Date: 15 April 2002
• Docket Number: No. 00-3113.,00-3113.
• Citation: 288 F.3d 1187
• Parties: Noble Leroy JOHNSON, Petitioner-Appellant, v. David R. McKUNE; Attorney General of Kansas, Respondents-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

288 F.3d 1187

Noble Leroy JOHNSON, Petitioner-Appellant, v. David R. McKUNE; Attorney General of Kansas, Respondents-Appellees.

No. 00-3113.

United States Court of Appeals, Tenth Circuit.

April 15, 2002.

COPYRIGHT MATERIAL OMITTED

Stephen W. Kessler, Topeka, KS, for Petitioner-Appellant.

Jared S. Maag, Assistant Attorney General, Office of the Kansas Attorney General, Topeka, KS, for Respondents-Appellees.

Before BRORBY and HOLLOWAY, Senior Circuit Judges, and HENRY, Circuit Judge.

HOLLOWAY, Senior Circuit Judge.

I

On March 25, 1976, Noble Leroy Johnson was convicted in the district court of Butler County, Kansas of two counts of first degree murder and given two concurrent life sentences. The Kansas Supreme Court affirmed his convictions on December 10, 1977. State v. Johnson, 223 Kan. 237, 573 P.2d 994 (Kan.1977). From 1981 to 1994 Johnson filed four post-conviction motions pursuant to Kan. Stat. Ann. § 60-1507, all unsuccessful, in the Kansas state courts. The first, second and fourth of these raised the issue that a jury instruction pertaining to intent similar to an instruction given at Johnson's trial had been declared unconstitutional by the United States Supreme Court in Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). In all three instances, the Kansas courts denied Johnson relief, holding that this issue had been waived and defaulted.

In 1997 Johnson, then an inmate in Lansing Correctional Facility in Lansing, Kansas, petitioned the United States District Court for the District of Kansas for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On March 30, 2000, the District Court found the Sandstrom issue not to have been defaulted or waived because Sandstrom was not decided until after Johnson's conviction was final and because he had raised the issue in his first motion and appealed its denial to the highest state court. Johnson v. McKune, No. 97-3269-DES, 2000 WL 422340 at *3-4 (D.Kan. Mar. 30, 2000). However, the court held that the ruling in Sandstrom was not retroactively applicable on collateral review under Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). Id. at *4-5, and denied habeas relief and dismissed the action.

Johnson now appeals the District Court's denial of the writ. On November 2, 2000 we granted a certificate of appealability as to Johnson's claim that Sandstrom should be applied retroactively to the jury instruction issue. We exercise jurisdiction under 28 U.S.C. § 1291. For reasons set forth below, we affirm the District Court's decision.

II

In September 1975, Thomas and Darlene Woodyard were murdered in El Dorado, Kansas. The Woodyards were friends of Noble Leroy Johnson and his wife Linda, and had eaten dinner at their house a few hours before the murders. The bodies were discovered three days later when the Woodyards' landlady entered the house. Both victims had been stabbed, their throats cut, and their bodies mutilated. Trial Transcript at 89, 95.

Linda Johnson, questioned separately from her husband, gave testimony implicating her husband. According to her testimony, Noble Johnson fought with both victims after dinner, injuring them. After apologizing, he walked home with them. After returning home, her husband told her he was going to go back and kill them. She heard her husband using his knife sharpener before he left. He returned 35 to 45 minutes later, demanding that she wash his bloody clothing, telling her that Darlene had been the hardest to go, and saying that God would never forgive him for what he had done. She also said that Johnson threatened to kill her if she revealed what had happened. Trial Transcript at 16-26. A witness said he had seen Noble Johnson crouching by the river behind the Woodyards' house the day before the bodies were discovered. Trial Transcript at 65-66.

The undersheriff said Johnson told him what happened the night of the murders. According to the undersheriff, Johnson said he had drunk six beers and half a pint of whiskey that evening and admitted being in the Woodyards' house with a knife, but Johnson had said that Thomas Woodyard killed Darlene Woodyard in another room. Johnson said he became very angry at this and hit Thomas Woodyard. Thomas, Johnson said, then attacked him with a knife, cutting his hand. After this, Johnson said everything went "dark and blank," which frightened him. Johnson said that because the doors were locked from the inside, he dived out the window. He said he then threw the knife into the river behind the Woodyards' house and returned home. However, the undersheriff said Johnson never indicated he remembered killing anyone. Trial Transcript at 158-61.

Johnson also took the stand, providing a similar but somewhat less intelligible explanation of the evening's events. Johnson said he believed Thomas Woodyard had killed Darlene Woodyard in another room. Johnson said he was angry at this, and that he "got all mixed up," thinking Darlene was his own daughter. Johnson admitted hitting Thomas Woodyard, somehow cutting his own hand. He testified that after this, things became dark and he immediately escaped through the window and ran home. Trial Transcript at 197-201.

Johnson's position at trial was that he was not guilty by reason of insanity. He introduced testimonial evidence in support of this defense, including his own testimony, the testimony of his parents and siblings, and the testimony of a psychiatrist who had examined him at the state's request.

The prosecution offered rebuttal evidence that included the testimony of a different psychiatrist. The two psychiatrists agreed that Johnson was troubled, but disagreed both as to the degree of his psychological problems, and also as to whether Johnson could distinguish between right and wrong at the time of the murders.

At trial, the jury was given the following instruction regarding a legal presumption of intent:

There is a presumption that a person intends all the natural and probable consequences of his voluntary acts. This presumption is overcome if you are persuaded by the evidence that the contrary is true.¹

The jury was also given instructions that the state had to prove Johnson's sanity beyond a reasonable doubt, and that it bore the burden of proof concerning Johnson's guilt. Trial Transcript at 525-27 (Instructions 9, 13).

Johnson did not, either at trial or on appeal, challenge the intent instruction. At that time, the instruction was in widespread use in Kansas, although it was later criticized by the Kansas Court of Appeals, which indicated that it would no longer approve such an instruction. State v. Acheson, 3 Kan.App.2d 705, 601 P.2d 375, 384, rev. denied 227 Kan. 266, 606 P.2d 1022 (1980), cert. denied 449 U.S. 965, 101 S.Ct. 379, 66 L.Ed.2d 232 (1980). The instruction was then modified, and has since been abandoned altogether. Compare PIK 2d 54.01 and 54.01-A with PIK 3d 54.01 (omitting modified presumption of intent instruction).

III

A Whether This Court Can Consider Johnson's Sandstrom Claim

Because Johnson filed his petition with the United States District Court in 1997, the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), effective April 24, 1996, applies to this case. Ordinarily, under AEDPA a federal court may grant a petitioner a writ of habeas corpus only if the state court's adjudication of the claim on the merits

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.²

28 U.S.C. § 2254(d). On the other hand, "[i]f the claim was not heard on the merits by the state courts, and the federal district court made its own determination in the first instance, we review the district court's conclusions of law de novo...." La Fevers v. Gibson, 182 F.3d 705, 711 (10th Cir.1999).

The Kansas Court of Appeals concluded that under Kansas Supreme Court Rule 183(c)(3), Johnson's Sandstrom claim was not subject to review because he had failed to raise the issue on direct appeal. It added, however, that Johnson's claim was "one previously rejected by this Court," citing State v. Acheson, 3 Kan. App.2d 705, 601 P.2d 375 (Kan.1979); State v. Egbert 227 Kan. 266, 606 P.2d 1022 (Kan.1980); State v. Myrick & Nelms, 228 Kan. 406, 616 P.2d 1066 (Kan.1980); State v. McDaniel & Owens, 228 Kan. 172, 612 P.2d 1231 (Kan.1980). Memorandum Opinion of March 31, 1983. The federal District Court's opinion implicitly rests on the assumption that the Kansas Court of Appeals decided the Sandstrom claim on its merits. See Johnson, 2000 WL 422340 at *1, *3 (applying AEDPA's "contrary to, or involv[ing] an unreasonable application of, clearly established Federal law" provision). However, Johnson asks us to apply the de novo standard of review, pointing out that while the Kansas state courts did opine that he was not entitled to relief on the merits, they found that his claim was procedurally barred. Brief of Appellant at 3.

We agree with the District Court's reasoning that Johnson, having raised the Sandstrom claim in the first of his four post-conviction motions, did not waive his claim by failing to raise it in all successive motions or appeal its denial, either of which would have been futile. Johnson, 2000 WL 422340 at *4. We believe the denial of Johnson's first motion serves as an adjudication on the merits by the state court. Here, it appears that the state court relied on the merits as an alternative basis for its holding, which is permissible. See Harris v. Reed, 489 U.S. 255, 264 n. 10, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989) (noting that state courts may both rely on state procedural bars and reach federal substantive questions in denying habeas relief). See also Michigan v. Long, 463 U.S. 1032, 1040-41, ...