Johnson v. State of Md., 89-7132

• Decision Date: 13 November 1990
• Docket Number: No. 89-7132,89-7132
• Citation: 915 F.2d 892
• Parties: Terrence G. JOHNSON, Petitioner-Appellant, v. STATE OF MARYLAND, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 892

915 F.2d 892

Terrence G. JOHNSON, Petitioner-Appellant, v. STATE OF MARYLAND, Respondent-Appellee.

No. 89-7132.

United States Court of Appeals Fourth Circuit.

Argued July 19, 1990.

Decided Oct. 1, 1990.

Rehearing and Rehearing In Banc

Denied Nov. 13, 1990.

Keith R. Fisher, argued (Patricia M. Wright and Lauren Clingan, on brief), Hogan & Hartson, Washington, D.C., for petitioner-appellant.

Mary Ellen Barbera, Asst. Atty. Gen. of Maryland, argued (J. Joseph Curran, Jr., Atty. Gen. of Maryland, on brief), Baltimore, Md., for respondent-appellee.

Before ERVIN, Chief Judge, and PHILLIPS and MURNAGHAN, Circuit Judges.

ERVIN, Chief Judge:

Terrence G. Johnson appeals the district court's denial of his petition for federal habeas corpus relief pursuant to 28 U.S.C. Sec. 2254. During his trial, a juror told the trial judge in camera that she thought the jury foreman was racially prejudiced because he had told her, "the blacks are sticking together." The judge did not notify Johnson or his attorney of this incident. Johnson seeks habeas relief on the grounds that the judge's lack of response to this information denied him his constitutional rights (1) to a fair trial before an impartial jury, (2) to effective assistance of counsel, and (3) to be present at critical stages of his trial. We agree with the state court's finding that neither the alleged statement nor the judge's meeting with the juror prejudiced Johnson's case or influenced the verdict of the jury. We therefore find any error to be harmless and affirm the decision of the district court.

I.

On June 26, 1978, Johnson was taken into custody by Prince George's County (Maryland) police officers after the car in which he was riding was stopped for a traffic violation. At the stop, the officers found items inside the car that made them suspect the occupants had been involved in a recent larceny. At the police station, an altercation developed between Officer James B. Swart, Officer Albert Claggett, and Johnson. Claggett then took Johnson into a separate room where, according to Johnson, the police officer began to beat him. Johnson grabbed Claggett's revolver, shot the officer in the abdomen, and ran from the room. He then fired several more shots, killing Officer Swart. Claggett also died from his wound.

Johnson, who is black, was prosecuted on two counts of murder and related charges arising from the deaths of the officers, who were white. The trial was preceded by extensive voir dire intended inter alia to disclose any racial bias on the part of the prospective jury members. ¹ On March 31 1979, the jury convicted Johnson on one count of voluntary manslaughter and one count of use of a handgun in the commission of a violent crime, both related to the shooting of Officer Claggett. He was acquitted on both counts of murder and was found not guilty by reason of insanity of the manslaughter and other counts relating to the shooting of Officer Swart. Johnson was sentenced to ten years' incarceration for the manslaughter conviction and fifteen years' incarceration for the handgun conviction to run consecutively.

The Maryland Court of Special Appeals affirmed his conviction in an opinion filed February 5, 1980. The Maryland Court of Appeals denied his petition for a writ of certiorari, as did the United States Supreme Court.

Approximately a year after the trial, a researcher with the National Jury Project conducted post-trial interviews of the jurors in Johnson's case. He advised Johnson's lawyers that one juror, Jacqueline Ball, told the trial court judge, Judge Jacob Levin, during the trial that she believed the jury foreman was racially prejudiced. On March 18, 1980, Johnson filed a petition for post-conviction relief in state court under Article 27, section 645A of the Annotated Code of Maryland. He argued that because he and his counsel were not present at the meeting between Judge Levin and Ms. Ball, he was denied his constitutional rights to be present at all critical stages of his trial, to have effective assistance of counsel, to challenge a juror for cause, to be tried by a jury of competent jurors, and to be notified of any communication from the jury to the court pertaining to the case.

Judge Howard A. Chasanow of the Circuit Court for Prince George's County conducted hearings on Johnson's petition on November 19, 1980, and on January 21, 1981. In preparation for these hearings, Johnson's counsel deposed Judge Levin, juror Ball, the foreman William H. Burns, and two other jurors. During the hearings, Johnson's counsel argued only that his client's constitutional right to be present at a critical stage of the trial had been violated, and Judge Chasanow decided only that issue. In its opinion, the state court found the following facts:

During the second week of the petitioner's trial, the judge received a note informing him that a juror, Jacqueline Ball, wished to speak with him. After receiving the request, the judge told all counsel, at a bench conference ..., that he planned to meet with juror Ball. A short recess was taken and the judge met with the juror in his chambers. Ms. Ball told the judge that in her opinion the jury foreperson, William Burns, was "prejudiced." Her sole basis for the foregoing assessment of bias was Burns' statement that "the blacks (presumably jurors) were sticking together." The judge talked to Ms. Ball and apparently eased her suspicions about the foreperson, but the exact words spoken were not remembered by the judge. The judge ended the meeting by asking Ms. Ball to notify him if she had any further problems with the foreperson. It is apparent that the judge was of the opinion that the meeting had resolved Ms. Ball's concern and that the conversation was so innocuous it was not necessary to inform counsel or the petitioner of the matters discussed. The trial thus proceeded without further mention of the judge's conversation with Ms. Ball. The judge was not contacted again by Ms. Ball nor by any other juror about the foreperson.

Johnson v. Maryland, No. 88-1448, slip op. at 4-5 (D.Md. Mar. 24, 1989). From these facts and in consideration of the extensive voir dire, Judge Chasanow concluded that "the trial judge's meeting with juror Ball out of the presence of petitioner in no way prejudiced the petitioner's case nor did it have any tendency to influence the verdict of the jury."

On March 6, 1981, Johnson applied to the Maryland Court of Special Appeals for leave to appeal Judge Chasanow's denial of post-conviction relief. The Court of Special Appeals denied his application in an opinion explicitly adopting Judge Chasanow's facts and conclusions.

On November 15, 1982, Johnson filed a petition for writ of habeas corpus in the United States District Court for the District of Maryland asserting that Judge Levin's ex parte meeting with the juror violated his sixth amendment right to effective assistance of counsel. The court, finding that the issue of effective assistance had never been considered by the state courts, dismissed Johnson's petition "without prejudice to the petitioner's right to re-file for a writ of habeas corpus once he has exhausted his available state remedies." See Johnson v. Maryland, 563 F.Supp. 241, 244 (D.Md.1983). This court summarily affirmed the district court's decision, and the Supreme Court denied Johnson's petition for a writ of certiorari.

On February 11, 1985, Johnson filed a second post-conviction petition in state court. His alleged grounds for relief were the denial of his right to effective assistance of counsel and denial of his right to trial by a fair and impartial jury. Judge G.R. Hovey Johnson of the Circuit Court for Prince George's County denied Johnson's petition on December 18, 1985. After observing that "it appears to this court that the petitioner abandoned the present claims by failing to mention them at the initial post-conviction hearing before Judge Chasanow or in petitioner's application for leave to appeal," he nevertheless addressed the merits of Johnson's petition. Judge Johnson adopted Judge Chasanow's findings of fact and held that even if Judge Levin had committed any error in handling his conference with Ms. Ball, the error was harmless.

On appeal, the Maryland Court of Special Appeals denied his application in an opinion dated August 8, 1986, stating that "all of the issues presented here have been waived by virtue of the applicant's failure to have raised them before." The court, however, then considered the merits of Johnson's allegations and found that they afforded him no basis for relief.

On May 9, 1988, Johnson filed a petition for federal habeas corpus relief in federal district court, which denied Johnson's petition on its merits. It reasoned that under Rushen v. Spain, 464 U.S. 114, 104 S.Ct. 453, 78 L.Ed.2d 267 (1983) (per curiam), Judge Chasanow's factual findings were entitled to a presumption of correctness. Affording deference to those findings, the court concluded that "any error on the part of Judge Levin was harmless." Johnson, slip op. at 14. This appeal followed.

II.

Before reaching the substantive merits of this appeal, we will first briefly address the State's contention that Johnson waived two of his legal theories in support of his present petition by not pursuing them during the first round of state post-conviction proceedings. After reviewing the long procedural history of this case and examining and hearing thorough and well-reasoned arguments by both parties, we believe that it is right and proper for us to address the issues in this case on their merits. Johnson raised all of these issues in his post-conviction petition before Judge Chasanow, and the state judge did not make any affirmative finding of abandonment in the first state post-conviction opinion. At the federal level, Judge Young remanded the case to the state courts for further consideration of these issues. ² Every court since then has addressed...