Johnson v. Armontrout, 90-1535
| Decision Date | 10 January 1991 |
| Docket Number | No. 90-1535,90-1535 |
| Parties | Blaine Eugene JOHNSON, Appellant, v. William ARMONTROUT, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
George Bartlett, Jefferson City, Mo., for appellant.
Jared R. Cone, St. Louis, Mo., for appellee.
Before McMILLIAN and BOWMAN, Circuit Judges, and HARRIS, 1 Senior District Judge.
Blaine Johnson appeals the District Court's 2 denial of his petition for a writ of habeas corpus. We affirm.
On June 7, 1985, Johnson was convicted by a jury of forcible rape and stealing from a person. He was sentenced to consecutive prison terms of thirty-six and seven years on both convictions respectively. The Missouri Court of Appeals affirmed the convictions in State v. Johnson, 714 S.W.2d 891 (Mo.App.1986). Johnson then filed for state post-conviction relief under Missouri Supreme Court Rule 27.26. The trial court's denial of Johnson's 27.26 motion was affirmed by the Missouri Court of Appeals. See Johnson v. State, 761 S.W.2d 213 (Mo.App.1988).
Johnson then filed for federal habeas corpus relief in the District Court. Without an evidentiary hearing, the District Court denied Johnson's petition for habeas corpus relief. Johnson v. Armontrout, No. 89-0645-CV-W-JWO (W.D.Mo., Feb. 21, 1990). This appeal followed.
Johnson, a black man, contends the jury did not represent a fair cross-section because the state used two of its peremptory challenges to strike the only two black persons on the panel. We agree with the District Court that this claim is procedurally barred.
Johnson argues that his petit jury was unconstitutionally selected based upon Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Although Johnson's counsel did object at trial, this issue was not raised in Johnson's motion for new trial, nor in the brief on direct appeal. Johnson did raise this peremptory challenge issue in his 27.26 motion. After an evidentiary hearing, the motion court held that Johnson's failure to raise the claim on direct appeal constituted a waiver of the claim. The Missouri Court of Appeals affirmed. Johnson v. State, 761 S.W.2d 213 (Mo.App.1988). The District Court held that although Johnson's Batson claim might have merited review on direct appeal, because Johnson's convictions were final three months after Batson was decided, the issue was not preserved for review by the appellate court.
Under Missouri law, issues not brought forward on direct appeal are waived. State v. Heitman, 473 S.W.2d 722 (Mo.1971). The state courts' resolution of the issue constitutes a procedural bar. Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038, 1043, 103 L.Ed.2d 308 (1989). We find that Johnson's Equal Protection argument pursuant to Batson is procedurally barred from consideration.
Johnson alternatively argues he had ineffective assistance of counsel based upon his trial counsel's failure to preserve the Batson issue on the direct appeal. We also find this claim unpersuasive.
We must first determine whether counsel's conduct was deficient, and if so, whether that conduct so prejudiced Johnson as to undermine confidence in the outcome of the proceedings. See Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S.Ct. 2052, 2064, 2068, 80 L.Ed.2d 674 (1984). Should we conclude that counsel's conduct was reasonable under the circumstances, we need not reach the issue of prejudice.
Johnson's brief on direct appeal was submitted on March 18, 1986. Batson was decided on April 30, 1986. The District Court, relying upon Brunson v. Higgins, 708 F.2d 1353 (8th Cir.1983), correctly found that counsel's failure to anticipate a change in existing law is not ineffective assistance of counsel. 3
Also, Johnson never presented this claim in state court. Instead, he chose to present the underlying claim in his Rule 27.26 proceedings. Failure to present the same legal theory in state court constitutes a bar to federal habeas corpus review. Anderson v. Harless, 459 U.S. 4, 6, 103 S.Ct. 276, 277, 74 L.Ed.2d 3 (1982); Martin v. Solem, 801 F.2d 324,...
To continue reading
Request your trial
-
State v. Parker
...to the law existing at the time of trial; failure to predict a change in the law is not ineffective assistance. Johnson v. Armontrout, 923 F.2d 107, 108 (8th Cir.), cert. denied, 502 U.S. 831, 112 S.Ct. 106, 116 L.Ed.2d 75 (1991). Parker's trial counsel was not ineffective by failing to ant......
-
State v. Chambers
...to predict a change in law is not ineffective assistance. State v. Parker, 886 S.W.2d at 923 (Mo. banc 1994), citing Johnson v. Armontrout, 923 F.2d 107, 108 (8th Cir.), cert. denied, 502 U.S. 831, 112 S.Ct. 106, 116 L.Ed.2d 75 (1991). At the time of Chambers' third trial, both Instruction ......
-
Tisius v. Jennings, Case No. 4:17-cv-00426-SRB
...requires the Court to evaluate counsel's conduct from the perspective and circumstances available to him at the time. 923 F.2d 107, 108 n.3 (8th Cir. 1991). In the last reasoned decision on this issue, the Missouri Supreme Court held:The verdict director for first degree murder was patterne......
-
Nickerson v. Lee
...eleven months after Batson was decided), cert. denied, --- U.S. ----, 112 S.Ct. 1967, 118 L.Ed.2d 568 (1992); Johnson v. Armontrout, 923 F.2d 107, 108 n. 3 (8th Cir.) (no deficient performance where counsel failed to raise Batson claim on direct appeal, even though conviction was affirmed t......