938 F.2d 1166 (11th Cir. 1991), 89-3195, Johnson v. Singletary

Docket Nº:89-3195.
Citation:938 F.2d 1166
Party Name:Marvin Edwin JOHNSON, Petitioner-Appellant, v. Harry K. SINGLETARY, Jr., Secretary, Florida Department of Corrections, Respondent-Appellee.
Case Date:July 25, 1991
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

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938 F.2d 1166 (11th Cir. 1991)

Marvin Edwin JOHNSON, Petitioner-Appellant,


Harry K. SINGLETARY, Jr., Secretary, Florida Department of

Corrections, Respondent-Appellee.

No. 89-3195.

United States Court of Appeals, Eleventh Circuit

July 25, 1991

Rehearing Denied Sept. 4, 1991.

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[Copyrighted Material Omitted]

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Billy H. Nolas, Tallahassee, Fla., for petitioner-appellant.

Mark Menser, Asst. Atty. Gen., Dept. of Legal Affairs, Tallahassee, Fla., for respondent-appellee.

Appeal from the United States District Court for the Northern District of Florida.

Before TJOFLAT, Chief Judge, FAY, KRAVITCH, JOHNSON, ANDERSON, CLARK, EDMONDSON, COX, BIRCH and DUBINA, Circuit Judges, and HILL [*], Senior Circuit Judge [**].

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COX, Circuit Judge:

Petitioner Marvin Edwin Johnson, a Florida death row inmate, appeals the district court's denial of his 28 U.S.C. Sec. 2254 petition for a writ of habeas corpus. A panel of this court concluded that Johnson was entitled to an opportunity to prove the ineffective assistance of sentencing counsel claim contained in his second federal habeas petition. This is so, the panel concluded, notwithstanding the fact that the claim is procedurally defaulted because Johnson did not present the claim to Florida courts under Florida's procedural rules, notwithstanding the fact that there was no "cause" for his having failed to do so, and notwithstanding the fact that he did not present the claim in his first federal habeas petition. Johnson v. Dugger, 911 F.2d 440, 444 (11th Cir.), vacated, 920 F.2d 721 (1990). He is entitled to pursue the claim, the panel majority concluded, because he "has proffered evidence which if true would establish that he probably was actually innocent of the death sentence he received." Id. at 477. The en banc court decided to review the case primarily to address the question of what it means to be "actually innocent" of a death sentence. We conclude that Johnson is not actually innocent of the sentence he received and affirm the district court's denial of habeas relief.


In June 1978, Warrington Pharmacy in Pensacola, Florida, was robbed. In the course of that robbery Woodrow Moulton, a pharmacist and the owner of the pharmacy, was shot and killed. Marvin Edwin Johnson was indicted for first-degree murder and armed robbery. The Supreme Court of Florida summarized the State's evidence at trial as follows:

Gary Summitt, an employee of Warrington Pharmacy and an eyewitness to the robbery and the murder, testified that while working at the pharmacy on the evening of June 7, 1978, he went to the back of the store to ask the pharmacist, Woodrow Moulton, a question. There he saw the defendant Johnson holding a gun on Moulton who was at the pharmacy safe putting articles in a bag, and he heard Johnson order Moulton to put certain drugs and money from the safe into the bag. After obtaining the drugs and money, Johnson started towards the front of the store. Moulton then grabbed a gun from behind the prescription counter. There was an exchange of gunfire, and Moulton continued to fire at Johnson until his gun was emptied. No longer able to defend himself, Moulton stood up with his hands in the air. Johnson then walked up to within a foot and a half of the defenseless pharmacist, said "You think you're a smart son-of-a-bitch, don't you?", and shot him in the chest.

Johnson v. State, 393 So.2d 1069, 1071 (Fla.1980), cert. denied, 454 U.S. 882, 102 S.Ct. 364, 70 L.Ed.2d 191 (1981).

On December 8, 1978, a jury found Johnson guilty of first-degree murder and armed robbery. 1 The next day, the same jury, acting in an advisory role, recommended Johnson be sentenced to life imprisonment on the murder conviction. About one month later, at the close of a sentencing hearing before the trial judge, the judge overrode the advisory jury's recommendation and sentenced Johnson to death. 2 In his written findings, the judge found five statutory aggravating circumstances and no statutory mitigating circumstances. 3

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Johnson appealed his convictions and sentence to the Supreme Court of Florida. 4 That court unanimously affirmed his convictions. Johnson v. State, 393 So.2d 1069 (Fla.1980), cert. denied, 454 U.S. 882, 102 S.Ct. 364, 70 L.Ed.2d 191 (1981). The court also affirmed Johnson's sentence, by a vote of four justices to three. 5 Id. The governor of Florida signed a death warrant in May 1982.

Rather than seeking habeas relief in the state courts pursuant to Florida Rule of Criminal Procedure 3.850, Johnson petitioned the district court for the Northern District of Florida for a writ of habeas corpus. Johnson's counsel in that proceeding later told the state supreme court that "they elected to raise only certain claims and assumed that they could always come back to state court and raise others." Johnson v. State, 536 So.2d 1009, 1011 (Fla.1988). 6 The State did not raise the defense of failure to exhaust state remedies 7 and thus waived that defense. See Pennington v. Spears, 779 F.2d 1505 (11th Cir.1986). The district court, after initially granting a stay of execution, denied the petition and thereafter denied Johnson's motion to alter or amend the district court's judgment.

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Johnson appealed to this court, raising seven issues: (1) whether the state trial court's refusal to consider lingering doubt about the certainty of proof violated the Eighth and Fourteenth Amendments; (2) whether the state trial court improperly refused to consider or weigh nonstatutory mitigating circumstances; (3) whether the state trial court's exclusion of expert testimony on factors affecting the reliability of eyewitness identification was unconstitutional; (4) whether prosecutorial misconduct during the cross-examination of Johnson at trial rendered the trial fundamentally unfair; (5) whether the district court improperly denied discovery regarding Johnson's claim of a due process violation by the Supreme Court of Florida; (6) whether the imposition of a death sentence by a trial court following a jury recommendation of life is unconstitutional; and (7) whether an alleged error of fact in the Supreme Court of Florida's decision, relating to Johnson's use of the term son-of-a-bitch, improperly affected the determination of aggravating circumstances in this case.

Three claims asserted in the district court were not argued on appeal and were deemed abandoned. See Johnson v. Wainwright (Johnson I), 806 F.2d 1479, 1481 n. 5 (11th Cir.1986), cert. denied, 484 U.S. 872, 108 S.Ct. 205, 98 L.Ed.2d 157 (1987). Those claims were: the claim that the trial judge erred in the application of the Tedder standard (an issue Johnson is raising in the present proceeding); the claim that photographs of the interior of the pharmacy were improperly admitted; and the claim that the Supreme Court of Florida erred in not remanding the case for resentencing after it struck one of the aggravating circumstances found by the trial judge. This court addressed all of Johnson's other claims on the merits, and we affirmed the district court's denial of relief. Johnson I, 806 F.2d at 1482-87. Johnson's second death warrant was signed in March 1988.

On April 10, 1988, three days before his scheduled execution, Johnson petitioned the Supreme Court of Florida for a writ of habeas corpus and a stay of execution. The court denied the requested relief the next day, reaching the merits of all of Johnson's claims. Johnson v. Dugger (Johnson II), 523 So.2d 161 (Fla.1988). 8 On the same day Johnson petitioned the Supreme Court of Florida for habeas relief, he also filed a motion in the state trial court for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850. 9 There, Johnson for the first time claimed that his sentencing counsel rendered ineffective assistance by failing to present evidence of Johnson's good character and by failing to present and develop available psychological evidence at sentencing. 10 The trial court denied the motion for post-conviction relief on April 11, 1988, because the motion had not been filed prior to January 1, 1987, as required by rule 3.850. The Supreme Court of Florida stayed Johnson's impending execution and reviewed the trial court's judgment. The supreme court agreed that the motion had not been timely filed and consequently the court ruled that it was procedurally barred. Johnson v.

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State (Johnson III), 536 So.2d 1009, 1011 (Fla.1988). Two justices dissented; they believed that despite the procedural bar, the court should have reached what they believed was a potentially meritorious issue (the ineffective assistance of counsel at sentencing issue) and remanded for an evidentiary hearing. See Johnson III, 536 So.2d at 1012-13 (Barkett, J., dissenting).

The governor of Florida signed a third death warrant in February 1989. On March 10, 1989, six days before Johnson's scheduled execution, Johnson filed his second federal petition for habeas relief--the one we confront today. 11 In his petition, Johnson presents five claims: (1) that his sentencing hearing violated the Supreme Court's decision in Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987), because the trial judge, in overriding the advisory jury's recommendation, failed to consider nonstatutory mitigating circumstances; (2) that his appellate counsel was ineffective in not challenging on direct appeal the denial of his motion to suppress an allegedly unreliable and suggestive photographic identification procedure; (3) that the Florida courts, by permitting the trial judge to override the jury's recommendation in this case, have applied their reviewing standard in such a manner as to result in an arbitrary and capricious imposition of the death sentence, in violation of the Eighth and Fourteenth Amendments; (4) that his trial counsel, by failing...

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