Anderson v. Johnson

• Decision Date: 08 July 2003
• Docket Number: No. 02-61037.,02-61037.
• Citation: 338 F.3d 382
• Parties: Roland ANDERSON, Petitioner-Appellee, v. Robert L. JOHNSON, Commissioner, Mississippi Department of Corrections; Mike Moore, Respondents-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

338 F.3d 382

Roland ANDERSON, Petitioner-Appellee, v. Robert L. JOHNSON, Commissioner, Mississippi Department of Corrections; Mike Moore, Respondents-Appellant.

No. 02-61037.

United States Court of Appeals, Fifth Circuit.

July 8, 2003.

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Michael Lee Knapp (argued), Jackson, MS, for Petitioner-Appellee.

Jerrolyn M. Owens (argued), Jackson, MS, for Respondents-Appellants.

Appeal from the United States District Court for the Southern District of Mississippi.

Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.

WIENER, Circuit Judge:

Respondent-Appellant Robert L. Johnson, Commissioner of the Mississippi Department of Corrections ("State") appeals the district court's grant of § 2254 habeas relief to Petitioner-Appellee Roland Anderson ("Anderson"). We affirm.

I. FACTS AND PROCEEDINGS

This petition for writ of habeas corpus stems from Roland Anderson's 1997 burglary conviction in the Circuit Court of Hinds County, Mississippi. Anderson was charged and convicted in connection with the attempted kidnapping and shooting of Dorothy Brister, a Mississippi bail bondsman and confidential informant for the Jackson Police Department and the Drug Enforcement Agency ("DEA"). On May 26, 1992, one day before Brister was scheduled to testify against a suspected drug dealer, an individual posing as a police officer arrived at her home. The imposter flashed a silver badge and Brister's twelve-year old daughter, Fredrika, opened the door for him. The imposter informed Brister that he was taking her into protective custody. Although Brister was suspicious, the imposter eventually coerced her into her rental car outside; when Brister attempted to flee, the imposter shot her once in the neck. Brister's live-in boyfriend, Arthur Gray, witnessed the attack and attempted, unsuccessfully, to apprehend the assailant. Brister remains partially paralyzed in her left hand as a result of the attack.

Although law enforcement officials showed Brister several photographs, she was unable to identify her attacker. Three years later, in July of 1997, while posting a bond at the Hinds County Detention Center, Brister overheard the voices of three men and suspected that one was the perpetrator. When she looked up, she immediately recognized Roland Anderson as her assailant. Anderson was arrested and charged with aggravated assault, impersonating a police officer, and burglary of an occupied dwelling with intent to kidnap. Both Brister and her daughter, Fredrika, identified Anderson in a photo line-up prior to trial; investigators did not ask Arthur Gray to identify Anderson.

Anderson was first tried in February 1997. The jury was unable to reach a verdict, and the judge declared a mistrial. After a second trial in April 1997, the jury returned a verdict of guilty on all three charges. Two of the three charges (impersonating a police officer and assault) were dismissed post-trial as barred by the statute of limitations. Anderson was sentenced, as a habitual offender, to fifteen years in prison on the remaining burglary charge.

Anderson timely appealed his conviction, asserting four errors (1) constitutional and statutory speedy trial violations; (2) improper admission of evidence of other crimes; (3) a verdict against the weight of the evidence; and (4) improper sentencing as a habitual offender. In September 1999, the Mississippi Court of Appeals affirmed his conviction in a written opinion.¹ Anderson did not pursue discretionary review in the Mississippi Supreme Court.

In September 2000, Anderson filed, pro se, a petition for post-conviction relief in the Mississippi Supreme Court. Between his original state habeas petition and a supplemental brief, Anderson asserted a total of nine grounds for relief, including (1) ineffective assistance of counsel on appeal; (2) ineffective assistance of counsel at trial; (3) improper admission of evidence of other crimes; (4) evidence of "new material facts not previously presented"; (5) insufficient evidence to support a conviction; (6) improper exclusion of evidence relating to the truth and veracity of a confidential informant; and (7) cumulative error. In February 2001, the Mississippi Supreme Court denied Anderson's petition and issued a one-page order concluding that "the issues Anderson raised on direct appeal are without merit, and appellate counsel was not ineffective under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), for not raising these issues." The court further held that "the Application for Leave to Proceed in the Trial Court is not well taken and should be denied."

In May 2001, Anderson filed a petition for writ of habeas corpus in the United States District Court for the Southern District of Mississippi. In the petition, Anderson asserted five claims: (1) ineffective assistance of counsel on appeal; (2) ineffective assistance of counsel at trial, "where counsel failed to pursue an adequate investigation of the case and evidence"; (3) violation of his right to a speedy trial; (4) improper admission of evidence of prior bad acts; and (5) ineffective assistance of counsel at trial relating to sentencing as a habitual offender. In support of his petition, Anderson submitted the affidavit of Brister's boyfriend, Arthur Gray, one of two adult eyewitnesses to the crime. Gray attested that "Roland Anderson was nowhere around the scene of this shooting" and that "he would have testified on Mr. Anderson['s] behalf in his April 1997 trial if his attorney would have allowed him."

The case was referred to a magistrate judge, who appointed counsel to represent Anderson and, over the State's objection, set the matter for an evidentiary hearing. After the hearing, the magistrate judge issued a report recommending that Anderson's writ be granted and that he be retried or released within 120 days following entry of final judgment. The magistrate judge concluded that two of Anderson's five claims were meritorious (1) the alleged ineffective assistance of trial counsel for failure to investigate, interview, and call eyewitness Arthur Gray and (2) the alleged ineffectiveness of appellate counsel for failure to investigate and raise the Gray issue on appeal and for failure to assert the ineffectiveness of trial counsel on direct appeal.

In a detailed report and recommendation, the magistrate judge held that both trial and appellate counsel were ineffective under Strickland and that the Mississippi Supreme Court's finding to the contrary constituted an unreasonable application of established federal law. The magistrate judge briefly addressed the State's claim that the petition was procedurally barred for failure to exhaust state remedies, finding that "our analysis should suffice to establish cause for any procedural default" and that "[t]he requisite `prejudice' has been discussed throughout this report and recommendation."

After de novo review and consideration of the State's objections, the district judge adopted the recommendation of the magistrate judge in its entirety and entered a final judgment directing the State to retry Anderson within 120 days or dismiss the charges against him. The State timely appealed. We stayed the district court's order pending appeal and heard oral argument on an expedited basis.

II. ANALYSIS

A. Exhaustion of State Remedies

1. Standard of Review

Whether a federal habeas petitioner has exhausted state remedies is a question of law reviewed de novo.²

2. Discussion

The threshold issue that we must consider is whether Anderson's claims are procedurally barred because he has failed to exhaust available state remedies. The State acknowledges that Anderson had included in his state post-conviction petition the same ineffective assistance claims presented in the federal petition and that Anderson identified both the Strickland standard and non-testifying eyewitness Arthur Gray by name. The State contends, however, that Anderson is procedurally barred from raising this claim in a federal habeas action because he did not substantiate the "conclusory allegations" raised in his state petition with the affidavit of Arthur Gray.

28 U.S.C. § 2254(b)(1) requires that federal habeas petitioners fully exhaust remedies available in state court before proceeding in federal court.³ This longstanding exhaustion requirement is not jurisdictional, but "reflects a policy of federal-state comity ... designed to give the State an initial opportunity to pass upon and correct alleged violations of its prisoners' federal rights."⁴

To satisfy the exhaustion requirement, "a habeas petitioner must have fairly presented the substance of his claim to the state courts."⁵ This requirement is not satisfied if the petitioner presents new legal theories or factual claims in his federal habeas petition.⁶ We have consistently held that a "petitioner fails to exhaust state remedies when he presents material additional evidentiary support to the federal court that was not presented to the state court."⁷

Although exhaustion inquiries are fact-specific, as a general rule "dismissal is not required when evidence presented for the first time in a habeas proceeding supplements, but does not fundamentally alter, the claim presented to the state courts."⁸ Courts have explained that "although a habeas petitioner will be allowed to present `bits of evidence' to a federal court that were not presented to the state court," evidence that "places the claims in a significantly different legal posture must first be presented to the state courts."⁹

We have been called on to apply this familiar (though somewhat nebulous) standard on several occasions. In Graham v. Johnson,¹⁰ we rejected, for failure to exhaust, a petitioner's attempt to present — for the first time in federal habeas proceedings — "significant evidentiary support" not previously submitted to the state court. The "new" evidence at issue in Graham, offered in support of the petitioner's...