Johnson v. Blackburn

• Citation: 778 F.2d 1044
• Decision Date: 17 December 1985
• Docket Number: No. 84-4077,84-4077
• Parties: Joseph W. JOHNSON, Petitioner-Appellant, v. Frank BLACKBURN, Warden, Louisiana State Penitentiary, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 1044

778 F.2d 1044

Joseph W. JOHNSON, Petitioner-Appellant, v. Frank BLACKBURN, Warden, Louisiana State Penitentiary,

Respondent-Appellee.

No. 84-4077.

United States Court of Appeals, Fifth Circuit.

Dec. 17, 1985.

N. Graves Thomas, Shreveport, La., for petitioner-appellant.

John A. Broadwell, Asst. Dist. Atty., Shreveport, La., for respondent-appellee.

Appeal from the United States District Court for the Western District of Louisiana.

Before ALVIN B. RUBIN, RANDALL and Jerre S. WILLIAMS, Circuit Judges.

OPINION

RANDALL, Circuit Judge:

During the early-morning hours of June 28, 1979, Estella Allen was shot and killed in her house in Shreveport, Louisiana. Her ten-year old son Jimmy Allen, Jr., was wounded by a gunshot while he lay in bed. Estella Allen's "boyfriend," Joseph W. Johnson, was convicted by a jury of second-degree murder and attempted second-degree murder in connection with the shootings. Johnson appeals the dismissal of his petition for a writ of habeas corpus, 28 U.S.C. Secs. 2241, 2254, by the United States District Court for the Western District of Louisiana. We affirm.

I.

Based on the record of the state court trial, the facts for the purpose of considering this petition are as follows. 28 U.S.C. Sec. 2254(d). In 1979, Johnson alternatively lived alone, with his estranged wife Juanita, and with a girlfriend of almost two years, Estella Allen, who was also married but separated. Johnson frequently visited and stayed at Estella's house. Jimmy Allen, Jr., lived with her. Estella's husband, Jimmy Sr., was on active duty in the Navy.

At about midnight on June 28, 1979, Estella and Jimmy Sr. spoke by telephone and decided to attempt a reconciliation of their marriage, cancelling their plans for a divorce. ¹ The conversation ended at around 1:30 a.m. on June 28. Estella and Jimmy Jr. were alone in the house at the time.

At around 3:00 a.m., Jimmy Jr. was awakened from his sleep by a loud argument between his mother and a man whose voice he testified he recognized as Johnson's. Estella told Jimmy Jr. to call a relative on the telephone for help, but Johnson told Jimmy Jr. that he would shoot the boy if he used the phone. Jimmy Jr. stayed in his bed. Shortly thereafter, according to his testimony, Jimmy Jr. heard a gunshot. Johnson then entered the boy's bedroom and shot him one time. Jimmy Jr. was hit in the shoulder, but the wound was not serious, and after the assailant left he got out of bed and saw his mother bleeding from a neck wound and unconscious by the front door. He went to a neighbor's house, where he used the telephone to call his grandmother. He told her that "Joe" shot his mother.

The neighbors called police, who arrived within a few minutes. Jimmy Jr. told police that Johnson was responsible for the shootings. Police immediately considered Johnson to be a suspect, and three officers went to Johnson's house a short distance away in an unsuccessful attempt to locate him. They discovered his car in the driveway, and its hood and grill felt warm to the touch. The officers concluded it had recently been driven. Police impounded the car, and it was towed to a service station. Meanwhile, investigators at Estella's house recovered the two bullets, and concluded that they were .38 caliber.

Johnson called Estella's father at 10:00 a.m. on June 28 and asked to speak to her. Her father told Johnson that she had been killed, and that "the people," or the police, were looking for him. Shortly thereafter, Johnson went to the police station, where he was placed under arrest. He admitted to police at that time that he had a .38 caliber pistol. Several days later, Johnson's wife Juanita was interviewed by police. She stated at that time that Johnson spent at least part of the night of the 27th and morning of the 28th with her, but "couldn't say" when he had arrived.

Trial in the First Judicial District Court, Parish of Caddo, Louisiana, commenced on April 4, 1979, after extensive pre-trial motion practice. Johnson advanced an alibi defense, arguing that he had spent the entire night with his wife, Juanita Johnson, and that he had no contact with Estella the evening she was killed. His wife corroborated that testimony, stating that Johnson was in bed with her at 2:30 a.m. when she got up to take medication, and at 7:30 a.m. when she awoke for the day.

The trial court instructed the jury on the elements of second-degree murder and voluntary manslaughter in the killing of Estella, and attempted second-degree murder in the shooting of Jimmy Jr. The court instructed the jury that, as to all three crimes, "the state is required to prove that the accused had specific intent to commit the crime charged." It then defined specific intent, in accordance with the Louisiana Criminal Code, Article 10, as "that state of mind that exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act." The court instructed the jury that second-degree murder requires proof of specific intent to kill or inflict great bodily harm and followed this with this instruction:

In order to convict the defendant of second degree murder you must find that the defendant killed Estella Allen, and that the defendant acted with a specific intent to kill or inflict great bodily harm.

Following this, the court gave an identical specific intent instruction for the crime of voluntary manslaughter, adding "but the killing is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self control and cool reflection." The court then added an instruction on the intent element of all three crimes that "[a]s a general rule applicable in all criminal cases, including those where a specific intent is an element of the crime, the accused is presumed to intend the natural and probable consequences of his voluntary acts, knowingly performed." Defense counsel did not object to the instruction.

The jury returned guilty verdicts on the second-degree murder and attempted second-degree murder counts. The court sentenced Johnson to life in prison at hard labor without benefit of or eligibility for parole, probation or suspension of sentence for forty years on the murder conviction, and to thirty years at hard labor on the attempted murder conviction. The sentences were ordered to be served consecutively. The Louisiana Supreme Court affirmed his conviction. State v. Johnson, 381 So.2d 436 (La.1980).

Johnson filed an application for a writ of habeas corpus in Louisiana state court, which the district court denied on December 28, 1981, without a hearing. Writs to the Louisiana Supreme Court were dismissed on July 2, 1982.

This petition for a writ of habeas corpus was filed in the United States District Court on September 24, 1982. It was referred to a magistrate, who, after review of the moving papers and the state court record, recommended on September 12, 1983, that the petition be dismissed. That recommendation was adopted by the district judge, over objection. This appeal followed.

II.

The State concedes that the trial court's charge on intent, that "the accused is presumed to intend the natural and probable consequences of his voluntary acts, knowingly performed," may have shifted the burden of proof on this issue to Johnson, in violation of his due process rights under the rule subsequently set forth in Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), assuming, arguendo, that Sandstrom should be given retroactive application. However, trial counsel for Johnson did not object contemporaneously to the instruction as required by the rules of Louisiana procedure. La.Code Crim.P. art. 841; see State v. Henry, 449 So.2d 486, 488 (La.1984) (objection to faulty jury instructions must be made when instructions given). Therefore, unless Johnson can show (1) "cause" for failing to object to the instruction, and (2) "prejudice" by the unconstitutional instruction, he is barred from raising the issue here because his "contentions of federal law ... were not resolved on the merits in the state proceeding due to [petitioner's] failure to raise them there as required by state procedure." Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 2507, 53 L.Ed.2d 594 (1977); ² see also Reed v. Ross, 468 U.S. 1, 104 S.Ct. 2901, 2910, 82 L.Ed.2d 1 (1984). Counsel has "cause" for failing to raise an issue when there is no "reasonable basis" for his position in the law: "where a constitutional claim is so novel that its legal basis is not reasonably available to counsel, a defendant has cause for his failure to raise the claim in accordance with applicable state procedures." Id.

Although Sandstrom was decided shortly after the jury instructions at issue here were given, it can hardly be said that the claim in Sandstrom was "novel." Sandstrom itself was an entirely foreseeable extension of In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975); and Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977). Moreover, as the Supreme Court noted in Sandstrom, three federal circuit courts of appeal and two state appeals courts had determined the instruction to be flawed long before Johnson's conviction. 442 U.S. at 514 n. 3, 99 S.Ct. at 2454 n. 3. The Fifth Circuit, sitting en banc, decided two years before Johnson's trial that nearly identical instructions in federal criminal cases violated due process. United States v. Chiantese, 560 F.2d 1244, 1255 (5th Cir.1977) (en banc). Chiantese itself, as Chief Judge Brown noted, followed "years and years of pleading, preaching and begging District Judges" to abandon intent-shifting instructions. Id. at 1256 (Brown, C.J., concurring). In an analogous case that should have alerted counsel practicing in Louisiana that criminal jury instructions that...