Johnson v. Burke, 89-1684

• Decision Date: 22 May 1990
• Docket Number: No. 89-1684,89-1684
• Citation: 903 F.2d 1056
• Parties: Lawrence D. JOHNSON, Petitioner-Appellant, v. Luella BURKE, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1056

903 F.2d 1056

Lawrence D. JOHNSON, Petitioner-Appellant, v. Luella BURKE, Respondent-Appellee.

No. 89-1684.

United States Court of Appeals Sixth Circuit.

Argued April 3, 1990.

Decided May 22, 1990.

Arthur J. Tarnow (argued), Detroit, Mich., for petitioner-appellant.

Thomas Chambers (argued), Office of the Pros. Atty., Detroit, Mich., Suzanne L. Wilhelm, Office of the Atty. Gen., Appellate Div., Lansing, Mich., for respondent-appellee.

Before KRUPANSKY and MILBURN, Circuit Judges; and THOMAS, Senior District Judge ^*.

MILBURN, Circuit Judge.

Petitioner Lawrence David Johnson, a state prisoner in Michigan, appeals the dismissal by the district court of his petition for a writ of habeas corpus, pursuant to 28 U.S.C. Sec. 2254. For the reasons that follow, we affirm.

I.

A.

Johnson was convicted by a jury on December 6, 1974, of one count of first-degree murder and one count of manslaughter. The Michigan Court of Appeals affirmed his conviction on direct appeal (see People v. Johnson, 71 Mich.App. 602, 248 N.W.2d 633 (1977)), and the Michigan Supreme Court denied Johnson's petition for review on February 16, 1977.

Johnson made four unsuccessful attempts at obtaining postconviction relief in state courts between 1977 and 1987. This appeal arises from Johnson's application for leave to file a delayed motion for a new trial, which he filed in the Detroit Recorder's Court in early 1987. In an order issued May 28, 1987, the Recorder's Court denied Johnson's application.

On January 7, 1988, the Michigan Court of Appeals denied Johnson's application to file a delayed appeal because of "lack of merit on the grounds presented." On January 11, 1988, the Michigan Supreme Court denied Johnson's petition for review.

On August 15, 1988, Johnson petitioned the district court for a writ of habeas corpus. The district court denied Johnson's petition in a decision issued May 17, 1989.

B.

Johnson's convictions arose from events that transpired on the night of June 29, 1973, at the Hi-Life Bar in Detroit. Johnson, his brother Olen, and a friend, Mark Robinson, spent most of the day drinking beer together. They settled into the Hi- Life by 5:00 p.m., where they continued drinking beer. Bartender Nancy Ayers testified that one of the shooting victims, Joseph Battle, entered the bar at approximately midnight. Ayers testified that Battle appeared to be dancing by himself toward the jukebox when he bumped into Johnson's table, spilling Johnson's and his friends' drinks. Robinson testified that when Battle walked past, he attempted to take a beer and some dollar bills that were on Johnson's table, but Robinson did not report this to the officers at the scene.

Johnson and Battle exchanged words and then exchanged blows. It was disputed whether Johnson had a pistol himself or whether he took Battle's. Regardless, Johnson ended up with a pistol, which Ayers and other bar patrons said he used to beat Battle's head.

Borders Alvin "Pops" Henderson attempted to stop the fight, first verbally, and then by pulling the men apart. A shot was fired, and Henderson backed away from the fight. He then stumbled to the bar next door, asked the clean-up man to call the police, opened his shirt to reveal his chest wound and dropped dead.

Johnson and his two companions fled the bar immediately after Henderson was shot. A few minutes later, however, Johnson returned to the bar and found Battle still lying on the floor. He yelled, "You rotten nigger, I'll make sure you're dead," and shot Battle four times. Johnson then waved the pistol in the air, yelled that he would shoot anyone who tried to pursue him, fired one shot in the direction of the bar, and ran out of the building again. Battle died of gunshot wounds to his neck, chest, and abdomen. Henderson died of a single gunshot wound in his chest. Both died from .22-caliber long rifle bullets that were fired from the same gun.

Johnson fled the state but was extradited to Michigan and charged with the first-degree murder of Battle and the second-degree murder of Henderson. At his trial, Johnson raised the defenses of self-defense and insanity, and he was represented by separate counsel on each charge.

As required by state law, the prosecution called several res gestae witnesses, including Johnson's brother, Olen, and Mark Robinson, both of whom offered exculpatory testimony. While impeaching them, as he was free to do under Michigan law, the prosecutor elicited testimony from Olen that he never went to the police with his exculpatory information about his brother's role in the shootings. Similarly, the prosecutor elicited testimony from Robinson that conflicted with the statement he gave to police immediately following the shootings.

The defense called psychiatrist Dr. Emanuel Tanay, who testified that Johnson was traumatized through childhood beatings, shooting deaths of family members, and head injuries he received in car accidents. Dr. Tanay testified that it was his opinion that Johnson was afraid of guns and became very excitable around them, and that the circumstances at the Hi-Life Bar caused him to become unable to control his behavior or to distinguish right from wrong.

On cross-examination, the prosecutor attempted to discredit Dr. Tanay's opinion by emphasizing that it was based upon a single, hour-long interview with Johnson that occurred fourteen months after the shootings, and that the doctor had learned the facts of the case solely from Johnson himself. During cross-examination, the prosecutor also brought out that Johnson had been extradited for trial and that he had possessed a gun several months after the shootings.

The jury was instructed on first- and second-degree murder, manslaughter, self-defense, insanity, and the general verdict of not guilty. In its manslaughter instruction the trial court stated, contrary to the holding in Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), "The law implies from the unprovoked, unjustifiable excusable killing, the existence of that wicked disposition which the law terms malice aforethought. If a man kills another suddenly without provocation, the law implies malice and the crime is murder." The jury convicted Johnson of first-degree murder of Battle and of manslaughter in Henderson's death, apparently ignoring the trial court's erroneous instructions.

The Recorder's Court denied Johnson's application for leave to file a delayed motion for a new trial because his application did not

reflect upon its face any basis for concluding that relief is warranted or that defendant has been denied a fair opportunity in raising the issues discussed or having been raised; that such issues have not been duly considered.

The Recorder's Court also stated that "merit in the grounds asserted is not evident on the face of the application."

While Johnson's petition for a writ of habeas corpus was pending in the district court, the United States Supreme Court decided in Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038, 1043, 103 L.Ed.2d 308 (1989) that

a procedural default does not bar consideration of a federal claim on either direct or habeas review unless the last state court rendering a judgment in the case "clearly and expressly" states that its judgment rests on a state procedural bar.

The district court issued its decision denying Johnson's petition approximately three months after the Court issued its decision in Harris. Yet the district court did not mention Harris in its decision, but instead dismissed Johnson's claim of denial of due process because he did not object to the jury instructions at trial and could not show cause and prejudice for his failure to object. The district court dismissed Johnson's claims of ineffective assistance of counsel on the ground that they did not satisfy Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and then dismissed his claims of prosecutorial misconduct on the ground that the questions with which Johnson took issue elicited admissible evidence.

The principal issues presented in this appeal are: (1) whether the trial court's jury instructions deprived Johnson of due process of law by improperly shifting the burden of proof; (2) whether Johnson was denied the effective assistance of counsel; and (3) whether the prosecutor's conduct denied Johnson due process of law.

II.

A.

As noted above, the district court did not consider the implications of Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989), in its denial of Johnson's petition. Harris directs federal courts to consider federal claims brought by state prisoners "unless the last state court rendering a judgment in the case 'clearly and expressly' states that its judgment rests on a state procedural bar." 109 S.Ct. at 1043. Respondent concedes the applicability of the Harris plain statement rule to Johnson's petition, but contends that a plain statement of reliance on state procedural grounds can be found in the record filed in this appeal.

Respondent argues that Harris should be interpreted to direct the federal courts to look to the last determinative state court decision in a petitioner's case. Respondent gives no indication as to what constitutes a "determinative" decision. Rather, respondent asserts that in this case, we should look to the Recorder's Court's denial of Johnson's application to file a delayed appeal. Respondent then argues that a denial of an application is inherently a decision that relies on procedural grounds, and thus, respondent concludes, the plain statement rule of Harris has been satisfied. Respondent dismisses the Michigan Court of Appeals' and Michigan Supreme Court's orders denying Johnson's applications to file delayed appeals to be "merely orders denying review" of a procedural decision. We find respondent's arguments, uncluttered as they are by explanation or justification, to be wholly without merit.

The Supreme Court granted...