Johanson v. Pung, 85-5312
| Decision Date | 26 June 1986 |
| Docket Number | No. 85-5312,85-5312 |
| Citation | 795 F.2d 48 |
| Parties | Richard Donald JOHANSON, Appellant, v. Orville PUNG and the Attorney General of the State of Missouri, Appellees. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Cecilia M. Michel, Minneapolis, Minn., for appellant.
Steven C. DeCoster, St. Paul, Minn., for appellee.
Before LAY, Chief Judge, McMILLIAN, Circuit Judge, and HANSON, * Senior District Judge.
Richard Donald Johanson appeals from a final order entered in the District Court 1 for the District of Minnesota denying his 28 U.S.C. Sec. 2254 petition for habeas corpus relief. Johanson v. Pung, No. Civ. 4-85-198 (D.Minn. July 19, 1985) (order). For reversal Johanson argues that he was denied due process of law because (1) the self-defense instructions given by the state trial court improperly included the duty to retreat and (2) the prosecuting attorney's closing arguments were misleading and inflammatory and contained his personal opinions about the credibility of prosecution and defense witnesses. Johanson also argues that the law of self-defense at the time of trial was different from the law of self-defense as it existed at the time of the offense and that application of the changed law of self-defense is an ex post facto violation.
For the reasons discussed below, we affirm the order of the district court.
In January 1978 Johanson and a neighbor named Steave were involved in a fight in Johanson's apartment. During the fight Johanson stabbed Steave several times, and Steave sustained several serious knife wounds. While another neighbor helped Steave, Johanson and his wife disappeared. Johanson was not prosecuted until about 18 months later when Steave saw Johanson walking down a street and notified police. Johanson was charged with two counts of aggravated assault and was found guilty by a jury of both counts. He later failed to appear for sentencing and, after being taken into custody, was sentenced to 54 months imprisonment. His conviction was affirmed on direct appeal by the Minnesota Supreme Court. State v. Johanson, 358 N.W.2d 64 (Minn.1984).
Johanson then filed this petition for writ of habeas corpus. The district court denied the petition and this appeal followed.
Johanson first argues that he was denied due process of law because the self-defense instructions given by the state trial court improperly included the duty to retreat. Johanson argues the state trial court should have given a pattern instruction, Minn.Crim.Jury Instruction Guide No. 7.08, which did not include the duty to retreat. Johanson also argues that the self-defense instructions should have expressly included the so-called "castle doctrine," under which he would not have been subject to the duty to retreat because the assault had occurred in his home.
We agree with the district court that the self-defense instructions given by the state trial court did not deny Johanson due process of law. Johanson raised the question of the sufficiency of the self-defense instructions on direct appeal to the Minnesota Supreme Court. The Minnesota Supreme Court found that the self-defense instructions were adequate as a matter of state law. 358 N.W.2d at 65. The self-defense instructions given by the state trial court were consistent with the law of self-defense in Minnesota 2 and were supported by the evidence. Under these circumstances, Johanson has not raised a ground for relief cognizable in a federal habeas corpus proceeding. See, e.g., Tyler v. Wyrick, 635 F.2d 752, 753 (8th Cir.1980) (per curiam), cert. denied, 452 U.S. 942, 101 S.Ct. 3089, 69 L.Ed.2d 958 (1981); Davis v. Campbell, 608 F.2d 317, 319 (8th Cir.1979) (per curiam).
Johanson also argues that the law of self-defense at the time of trial was...
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Williams v. Jackson
...of self-defense in Michigan, the judge did not deny petitioner the due process of law by so instructing the jury. See Johanson v. Pung, 795 F. 2d 48, 49 (8th Cir. 1986). G. Claim # 11. The ineffective assistance of appellate counsel claim. Petitioner claims that appellate counsel was ineffe......
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...of self-defense in Michigan, the judge did not deny petitioner the due process of law by so instructing the jury. See Johanson v. Pung, 795 F. 2d 48, 49 (8th Cir. 1986). The Court will likewise reject petitioner's related ineffective assistance of counsel claim. To show that he was denied t......
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...neither the magistrate nor the District Court was given an opportunity to rule on it, we do not consider it here. See Johanson v. Pung, 795 F.2d 48, 49 (8th Cir.1986).8 According to the State's reading of dicta from Carrier, 477 U.S. at 485-89, 106 S.Ct. at 2644-46, Stokes cannot use ineffe......
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Rumble v. Smith, 89-1480
...law generally does not provide a basis for federal habeas corpus relief unless there exists constitutional error. See Johanson v. Pung, 795 F.2d 48, 49 (8th Cir.1986). Rumble was aware of the law in Missouri at the time of her trial, and her argument that she had no notice of the potential ......