Johnson v. Bell

• Citation: 525 F.3d 466
• Decision Date: 29 April 2008
• Docket Number: No. 04-5377.,04-5377.
• Parties: Cecil C. JOHNSON, Jr., Petitioner-Appellant, v. Ricky BELL, Warden, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

525 F.3d 466

Cecil C. JOHNSON, Jr., Petitioner-Appellant, v. Ricky BELL, Warden, Respondent-Appellee.

No. 04-5377.

United States Court of Appeals, Sixth Circuit.

Argued: March 15, 2007.

Decided and Filed: April 29, 2008.

ARGUED: James G. Thomas, Neal & Harwell, Nashville, Tennessee, for Appellant. Alice B. Lustre, Office of the Attorney General, Nashville, Tennessee, for Appellee. ON BRIEF: James G. Thomas, James Franklin Sanders, Neal & Harwell, Nashville, Tennessee, for Appellant. Alice B. Lustre, Office of the Attorney General, Nashville, Tennessee, for Appellee.

Before: BATCHELDER, COLE, and GIBBONS, Circuit Judges.

GIBBONS, J., delivered the opinion of the court. BATCHELDER, J. (pp. 488-90), delivered a separate concurring opinion. COLE, J. (pp. 490-97), delivered a separate dissenting opinion.

OPINION

JULIA SMITH GIBBONS, Circuit Judge.

In 1981, petitioner-appellant Cecil C. Johnson, Jr., was convicted by a Davidson County, Tennessee, jury of three counts of first degree murder, two counts of robbery, and two counts of assault. Johnson was sentenced to death for the murders and received four consecutive life sentences for the remaining convictions. The convictions and sentences were upheld by the Tennessee Supreme Court on direct appeal, and the United States Supreme Court denied Johnson's petition for a writ of certiorari. Johnson twice sought post-conviction relief in state court; both attempts failed. Johnson filed the instant petition in federal court in January 1999. The district court granted respondent's motion for summary judgment and dismissed the petition. This court granted a certificate of appealability on six issues. For the following reasons, we affirm the judgment of the district court.

I.

On July 5, 1980, Bob Bell's Market in Nashville, Tennessee, was robbed by an armed gunman. In the store at the time of the robbery were Bob Bell, Jr. (Bell), his son Bobbie, and Louis Smith, an acquaintance of Bell's. Bobbie Bell was helping at the cash register and Smith was working at the store repairing a motor for Bell. The assailant pointed a gun at Bell and ordered him and Smith behind the register where Bobbie Bell stood. While the captives were behind the counter, other customers entered the market. The gunman ordered the Bells and Smith to act naturally and attend to the customers. After the customers left, the gunman ordered Bobbie Bell to fill a bag with the money in the cash register.

Soon thereafter, the gunman began shooting. Bobbie Bell was shot first and later died from his wounds. After Bobbie Bell was shot, Smith threw himself on Bobbie in an effort to protect him from further harm. In the process, Smith was himself shot twice. The gunman then shot at Bell's head but, because Bell had lifted his hands, his wrist deflected the shot and Bell survived. As the gunman fled the market, he shot and killed two men—a cab driver and his passenger—who were sitting in a car parked near the entrance to the market. The cab driver was later identified as James Moore and the passenger as Charles House, a customer who had entered the market moments before the gunman began shooting his victims. Bell left the market and attempted to follow the gunman but was unable to do so successfully.

Information Bell gave to police officers immediately after the robbery led to Johnson's arrest on July 6, 1980. At trial, both Bell and Louis Smith identified Johnson as the perpetrator of the crimes. In addition, Debra Smith, a customer who entered the market during the commission of the robbery, identified Johnson as having been behind the counter with Bell, Bobbie Bell, and Louis Smith.

Johnson was also connected to the crimes by Victor Davis, a friend who had spent most of July 5, 1980, in the company of Johnson. During the course of the investigation, Davis made statements to the prosecution and defense that provided Johnson with an alibi. In essence, Davis said that he and Johnson were together continuously from roughly 3:30 p.m. on July 5 until approximately midnight and that at no time did they visit Bell's Market. However, the week before the trial, and after he was arrested on unrelated charges, Davis made a statement to the prosecution incriminating Johnson. At trial, Davis, who was promised immunity from prosecution for any involvement in the crimes committed at Bell's Market, confirmed his statements incriminating Johnson. According to Davis's testimony, he and Johnson left Franklin, Tennessee, at approximately 9:25 p.m. on July 5 and arrived in Nashville in the vicinity of Bell's Market shortly before 10:00 p.m. Johnson then left Davis's automobile after stating that he was going to rob Bell and was going to "try not to leave any witnesses."

Davis testified that he next saw Johnson some five minutes later near Johnson's father's house, which was roughly a block from Bell's Market. Davis stated that Johnson was carrying a sack and pistol and, when he entered Davis's automobile, Johnson said, "I didn't mean to shoot that boy." Johnson discarded the gun, which Davis later retrieved and sold the following day. Davis further testified that after he picked up Johnson, they drove directly to Johnson's father's house, arriving shortly after 10:00 p.m. There, in the presence of Johnson's father, Johnson took money from the sack, counted approximately $200, and gave $40 of this money to Davis. According to Davis, Johnson told his father that he and Davis had been gambling and that gambling was the source of the money.

Johnson testified on his own behalf and denied being in Bell's Market on July 5, 1980. His testimony as to the events of the day was largely in accord with that of Victor Davis, except for the time just before 10:00 p.m. Johnson testified that he never left Davis's automobile on the trip from Franklin to Johnson's father's house in Nashville and that he arrived at his father's house shortly before 10:00 p.m. Johnson's father testified that Johnson arrived a few minutes before 10:00, just before the 10:00 p.m. news began.

After hearing all the evidence, a Tennessee jury convicted Johnson of three counts of first degree murder, two counts of assault with intent to commit murder, and two counts of armed robbery. The jury recommended that Johnson be sentenced to death on each count of first degree murder and to consecutive life sentences on each of the remaining counts. The trial court accepted this recommendation and imposed the death penalty. On direct appeal in 1982, the Tennessee Supreme Court affirmed Johnson's convictions and sentence. State v. Johnson, 632 S.W.2d 542 (Tenn.1982). The United States Supreme Court denied Johnson's 1982 petition for a writ of certiorari. Johnson v. Tennessee, 459 U.S. 882, 103 S.Ct. 183, 74 L.Ed.2d 148 (1982). Johnson filed an application to stay the execution with the Tennessee Supreme Court in December 1982, pending the filing of a state petition for post-conviction relief, which was granted. In January 1988, the Tennessee Court of Criminal Appeals affirmed the trial court's judgment in part but reversed and remanded the case for a new sentencing hearing on the first degree murder convictions, based on error under Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985).¹

Both Johnson and the State filed applications to appeal to the Tennessee Supreme Court. The Tennessee Supreme Court reversed the appellate court's reversal, reinstated the death sentences, and affirmed the denial of relief on Johnson's claims in all other respects.² Johnson v. State, 797 S.W.2d 578 (Tenn.1990). In September 1990, Johnson filed a petition for rehearing with the Tennessee Supreme Court, which was denied, as was Johnson's motion for leave to file a second petition for rehearing.

Johnson filed his first federal petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in February 1991. Shortly thereafter, Johnson received information pursuant to a request under the Tennessee Open Records Act suggesting that the prosecution may have suppressed exculpatory material evidence at trial, in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The district court granted Johnson's request to add this Brady claim to his petition. In February 1995, while his first habeas petition was still pending, Johnson filed a second post-conviction petition in state court, which was denied by the trial court and affirmed by the state appellate court. Johnson requested permission to appeal to the Tennessee Supreme Court, and while his application was pending, the federal district court dismissed his first habeas petition without prejudice, pending the exhaustion of the claims he had raised in his second petition for post-conviction relief. In October 1998, the Tennessee Supreme Court denied Johnson permission to appeal. Johnson filed his current, second habeas petition in federal district court on January 25, 1999. The district court granted the government's motion for summary judgment on all ten of Johnson's claims.

II.

This court reviews de novo a district court's decision to grant or deny a petition for a writ of habeas corpus. Burton v. Renico, 391 F.3d 764, 770 (6th Cir. 2004). Because Johnson filed his habeas petition on January 18, 1999, this appeal is governed by the provisions of the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA). Woodford v. Garceau, 538 U.S. 202, 210, 123 S.Ct. 1398, 155 L.Ed.2d 363 (2003). Under AEDPA, a federal court may grant a writ of habeas corpus with respect to a claim that was adjudicated on the merits in State court proceedings 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." 28 U.S.C. § 2254(d)(1). A state-court decision is contrary to clearly established federal law "if the state court applies a rule that contradicts the governing law set...