Johnson v. Cabana

• Decision Date: 19 May 1987
• Docket Number: No. 87-4380,87-4380
• Citation: 818 F.2d 333
• Parties: Edward Earl JOHNSON, Petitioner-Appellant, v. Donald CABANA, Acting Commissioner, Mississippi Department of Corrections, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 333

818 F.2d 333

Edward Earl JOHNSON, Petitioner-Appellant, v. Donald CABANA, Acting Commissioner, Mississippi Department

of Corrections, Respondent-Appellee.

No. 87-4380.

United States Court of Appeals, Fifth Circuit.

May 19, 1987.

Robert B. McDuff, Washington, D.C., Clive A. Stafford Smith, Atlanta, Ga., for petitioner-appellant.

Marvin L. White, Jr., Asst. Atty. Gen., Jackson, Miss., respondent-appellee.

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

Before CLARK, Chief Judge, REAVLEY and WILLIAMS, Circuit Judges.

PER CURIAM:

In this appeal from the denial of his third petition for federal habeas corpus relief based on claimed violations of the Constitution of the United States, Edward Earl Johnson seeks to interdict the writ of the Supreme Court of Mississippi ordering his execution on May 20, 1987. After considering the pleadings in all of the successive collateral proceedings instituted in the Supreme Courts of the United States and of the State of Mississippi, the United States District Court for the Southern District of Mississippi, and this court, we conclude that Johnson's present counsel have failed to raise any new or different issues which indicate that Johnson failed to receive a basically fair trial of his guilt and punishment. We further conclude that Johnson's claim that his present mental condition proscribes his scheduled execution or entitles him to a hearing on the issue is insufficient. We therefore affirm the district court's denial of habeas corpus relief for the reasons stated in that court's opinion in addition to the various particular reasons set out below.

Through counsel who have not previously appeared on his behalf, Johnson asserts the following list of constitutional infirmities that rendered his trial and sentence fundamentally unfair:

(A) His trial counsel were ineffective.

(B) His prior habeas corpus counsel were ineffective.

(C) An instruction of the trial court created a mandatory presumption that improperly shifted the burden of proof to him.

(D) The prosecution concealed the fact that a biased juror failed to disclose her bias.

(E) A statement taken from Johnson violated his right to counsel under the sixth and fourteenth amendments.

(F) It would violate the eighth amendment to execute Johnson because he was only 18 years old at the time of the crime.

(G) The Mississippi capital statute under which Johnson was tried is unconstitutional on its face because it limits the mitigating circumstances he could develop for the jury.

Johnson also claims that he lacks present sanity--a condition which would prohibit his execution under the eighth amendment and under Mississippi law. Alternatively, Johnson claims he made a showing which entitled him to a hearing on this issue.

Johnson's prior federal habeas corpus proceedings are reported at 623 F.Supp. 1121 (S.D.Miss.1985) and 806 F.2d 1243 (5th Cir.1986). These prior reports detail Johnson's criminal activity, his trial, and his prior collateral attacks upon his conviction and sentence. The history of Johnson's legal activities following his trial and sentence shows the following. He opted not to file a petition to the Supreme Court of the United States seeking a writ of certiorari to the Mississippi Supreme Court, but rather filed applications for a writ of habeas corpus, both pro se and by counsel, with the United States District Court for the Southern District of Mississippi. His execution was stayed. The petitions were consolidated and dismissed for failure to exhaust available state remedies. Johnson v. Thigpen, No. J82-0523(R). Johnson's counsel next filed an application for a writ of error coram nobis with the Mississippi Supreme Court. This was denied. Johnson v. Thigpen, 449 So.2d 1207 (Miss.1984). Then followed a second petition for habeas corpus relief in the district court, 623 F.Supp. at 1121, an appeal of its denial to this court and our affirmance, 806 F.2d at 1243, the denial of panel and en banc rehearing, and a petition for a writ of certiorari to this court in the United States Supreme Court. Following the Supreme Court's denial of relief, Johnson v. Thigpen, --- U.S. ----, 107 S.Ct. 1618, 94 L.Ed.2d 802 (1987), the Mississippi Supreme Court on April 22 set a new execution date for May 20, 1987.

Collateral proceedings in that Court and in the district court followed. On May 13, 1987, Johnson filed a motion for post-conviction relief and stay of execution with the Mississippi Supreme Court. The court denied the motion on May 18th. Meanwhile, Johnson filed his current petition for writ of habeas corpus with the United States District Court on May 15th. On May 19th, the district court concluded that a stay was not necessary to consider the claims and evidence presented and denied Johnson's petition. The district court did, however, grant Johnson's application for certificate of probable cause. This appeal then ensued and Johnson has moved this court to stay his execution. Pursuant to the rules and practices of this court, this panel has received and reviewed all pleadings, exhibits, and orders filed in Johnson's collateral attacks in the Supreme Court of the State of Mississippi and the United States District Court contemporaneously with their filing.

I. Present Sanity--Right to a Hearing

In Ford v. Wainwright, --- U.S. ----, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986), the Supreme Court held that a defendant who could not perceive the connection between his crime and punishment should not be executed. The court further held that where psychiatric testimony indicated that the defendant believed that his death penalty had been invalidated, he was entitled to have the issue of his sanity resolved by hearing before he could be executed. In the present collateral proceeding Johnson's new counsel exhibit affidavits of a clinical psychologist who has recently examined him, a psychiatrist who evaluated him in 1979, and acquaintances who describe various character traits which they observed prior to his trial. The state counters with affidavits from a forensic psychologist, psychiatric progress notes prepared by a licensed psychologist who has visited with Johnson in recent days, and affidavits of the acting commissioner of the Department of Corrections and the acting superintendent and institutional chief of security of the penal institution where Johnson is incarcerated.

In Ford the plurality opinion of four justices was made a majority holding by the concurring opinion of Justice Powell. In that pivotal opinion Justice Powell states a precise formula for determining what process is due a petitioner in this situation.

[T]he State has a substantial and legitimate interest in taking petitioner's life as punishment for his crime. That interest is not called into question by petitioner's claim.... [T]his Court's decisions imposing heightened procedural requirements on capital trials and sentencing proceedings ... do not apply in this context.

... [I]n order to have been convicted and sentenced, petitioner must have been judged competent to stand trial, or his competency must have been sufficiently clear as not to raise a serious question for the trial court. The State therefore may properly presume that petitioner remains sane at the time sentence is to be carried out, and may require a substantial threshold showing of insanity merely to trigger the hearing process.

... [T]he sanity issue in this type of case does not resemble the basic issues at trial or sentencing. Unlike issues of historical fact, the question of petitioner's sanity calls for a basically subjective judgment.... [U]nlike the determination of whether the death penalty is appropriate in a particular case, the competency determination depends substantially on expert analysis in a discipline fraught with "subtleties and nuances." This combination of factors means that ordinary adversarial procedures--complete with live testimony, cross-examination, and oral argument by counsel--are not necessarily the best means of arriving at sound, consistent judgments as to a defendant's sanity.

... [A] constitutionally acceptable procedure may be far less formal than a trial. The State should provide an impartial officer or board that can receive evidence and argument from the prisoner's counsel, including expert psychiatric evidence that may differ from the state's own psychiatric examination. Beyond these basic requirements, the States should have substantial leeway to determine what process best balances the various interests at stake. As long as basic fairness is observed, I would find due process satisfied, and would apply the presumption of correctness of Sec. 2254(d) on federal habeas corpus.

Id. at 106 S.Ct. at 2610-11 (citations and footnote omitted) (emphasis added). In following these guidelines, we first would note that the following matters are disclosed by the record which was presented to the Supreme Court of Mississippi and to the district court.

Timothy Summers, a psychiatrist, averred that he had conducted an evaluation of Johnson in 1979 prior to Johnson's trial for capital murder. At that time he found Johnson had an alcohol dependency and at times suffered from alcoholic blackouts and episodes of amnesia. He was of the opinion that Johnson, who was a premature baby, had had some brain damage from birth. His preliminary diagnosis was that Johnson suffered from brain dysfunction, which was exacerbated by alcoholic intake. He stated that drinking alcohol caused Johnson to suffer organic brain syndrome, which had the effect of substantially lessening the ability to control his behavior.

Gilbert Macvaugh, Jr., a clinical psychologist who examined and tested Johnson over a five-hour period on May 11, 1987, swore that Johnson suffered an alcohol dependency problem which caused his thinking to be grossly disorganized at times. At the time of the commission of the crime in 1979,...