Johnson v. Cain, CIVIL ACTION NO. 14-2676 SECTION: "B"(5)

CourtUnited States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)
Writing for the CourtMICHAEL B. NORTH UNITED STATES MAGISTRATE JUDGE
PartiesJEREMY JOHNSON v. BURL CAIN, WARDEN
Docket NumberCIVIL ACTION NO. 14-2676 SECTION: "B"(5)
Decision Date09 September 2019

JEREMY JOHNSON
v.
BURL CAIN, WARDEN

CIVIL ACTION NO. 14-2676 SECTION: "B"(5)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

September 9, 2019


REPORT AND RECOMMENDATION

This matter was referred to the undersigned United States Magistrate Judge to conduct a hearing, including an evidentiary hearing, if necessary, and to submit proposed findings and recommendations for disposition pursuant to 28 U.S.C. § 636(b)(1)(B) and (C), and as applicable, Rule 8(b) of the Rules Governing Section 2254 Cases in the United States District Courts. Upon review of the entire record, the Court has determined that this matter can be disposed of without an evidentiary hearing. See 28 U.S.C. § 2254(e)(2). For the following reasons, IT IS RECOMMENDED that the petition for habeas corpus relief be DISMISSED WITH PREJUDICE.

Procedural History

Petitioner, Jeremy Johnson, is a convicted inmate currently incarcerated at the Louisiana State Penitentiary in Angola, Louisiana. On February 6, 2003, Johnson and co-defendant, Quantrell Kelson, were indicted for second-degree murder.1 On June 8, 2005, a

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jury found them both guilty of the responsive verdict of manslaughter.2 On June 15, 2005, the trial court sentenced Johnson to a 40-year term of imprisonment at hard labor.3 The State filed a multiple bill of information.4 On August 4, 2005, Johnson's motion for new trial, motion to quash the multiple bill and motion for reduction of sentence were denied. His original sentence was vacated. The trial court sentenced him as a second-felony offender to a 50-year term of imprisonment at hard labor. His motion to reconsider the enhanced sentence was denied.5

Johnson and his co-defendant were both granted direct appeals, but due to Hurricane Katrina, all relevant transcripts of the proceedings were unavailable. With no meaningful appellate review of their convictions possible, the court of appeal vacated both manslaughter convictions and sentences and remanded the case to the trial court for further proceedings.6

On December 21, 2007, the State filed a substitute bill of information charging Johnson and his co-defendant with manslaughter.7 In January 2008, Kelson moved to

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sever the defendants. The trial court granted the motion over the State's objection.8 On December 15, 2008, a jury found Johnson guilty of manslaughter. On December 22, 2008, the trial court sentenced him to 40 years' imprisonment at hard labor without benefit of probation, parole or suspension of sentence.9 He was subsequently adjudicated as a second-felony offender. The trial court vacated the original sentence and imposed an enhanced sentence of 80 years' imprisonment at hard labor.10 The defense objected to the excessiveness of the sentence. Johnson appealed.

On direct appeal, he asserted the following four assignments of error: (1) the trial court erred in denying his repeated objections regarding the conflict of interest presented by his defense counsel, which prevented him from having a fair trial; (2) the trial court erred in denying his two motions for mistrial when jury prejudice made it impossible for him to receive a fair trial; (3) the trial court erred in denying his motion to suppress the identification; and (4) his sentence was constitutionally excessive, a harsher sentence was vindictively imposed upon retrial, and the trial court erred in adjudicating him a second-felony offender. On May 26, 2010, the Louisiana Fourth Circuit Court of Appeal affirmed

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his conviction and sentence.11 He did not file an application for writ of certiorari with the Louisiana Supreme Court.

On May 13, 2011, his retained attorney C. Gary Wainwright submitted an application for post-conviction relief to the state district court on Johnson's behalf.12 In that application, he asserted the following claims: (1) the evidence was insufficient to support his conviction for manslaughter; (2) the 80-year sentence was unconstitutionally excessive and harsher than the sentence originally imposed; and (3) he was denied the right to effective assistance of counsel due to a conflict of interest. On June 28, 2012, while the application was pending, Wainwright was suspended from the practice of law for 18 months. On March 25, 2013, the district court denied relief. The district court reasoned:

The Fourth Circuit denied each of the Petitioner's claims for relief, which are the exact claims now being raised by Petitioner in the instant Application for Post-Conviction Relief [and] pursuant to La. C.Cr.P. art. 930.4, any claim for relief which was fully litigated in an appeal from the proceedings leading to the judgment of conviction and sentence shall not be considered.13

Martin Regan, Jr. enrolled as counsel of record for Johnson and filed a notice of intent to seek writs from the March 2013 ruling denying post-conviction relief. The district court set a return date of April 25, 2013. Meanwhile, on April 18, 2013, counsel filed a "Motion

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to File Memorandum in Support of Claimed Basis for Relief," in which he requested 30 days to file a supplemental memorandum "amplifying the facts underpinning the legal basis upon which Mr. Johnson seeks post-conviction relief." On May 15, 2013, counsel filed a supplemental memorandum to amend the post-conviction application to include five additional claims: (1) the trial court failed to instruct the jury as requested on the responsive verdict of negligent homicide; (2) the trial court erroneously denied him the ability to confront and cross-examine the State's sole eyewitness with her conflicting and inconsistent grand jury testimony; (3) the State knowingly presented false testimony (Napue); (4) ineffective assistance of trial counsel for failing to introduce expert testimony regarding his mental health during the suppression hearing; and (5) ineffective assistance of appellate counsel for failing to raise issues on direct appeal with respect to claims one through three.14 He was also granted two more extensions of time, until June 24, 2013, in which to file his application for writs to the Louisiana Fourth Circuit Court of Appeal. On June 24, 2013, the district court issued a ruling denying his proposed amendments to the post-conviction relief application, which had been denied in March.15

He timely filed his related writ application challenging the March 2013 ruling with

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the Louisiana Fourth Circuit Court of Appeal. He later submitted a copy of the district court's June 24, 2013 ruling denying his amended and supplemental claims. On October 14, 2013, the Louisiana Fourth Circuit Court of Appeal denied relief, stating:

Relator seeks review of the trial court's March 25, 2013 denial of his application for post-conviction relief. Finding no error in the trial court's ruling, the writ application is denied.16

Johnson filed a counseled supervisory writ application with the Louisiana Supreme Court.17 On October 10, 2014, the Louisiana Supreme Court denied relief without citing additional reasons.18

During the time these writ applications were pending, Johnson continued to pursue relief in the state district court. On August 2, 2013, Regan filed a second counseled post-conviction application with the state district court.19 This application included the same five claims the district court had rejected when he belatedly tried to expand the scope of the first application for post-conviction relief. In January 2015, supplemental exhibits were filed for consideration.20

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While that post-conviction application was pending, on November 21, 2014, counsel on his behalf filed a federal application for relief in this Court. In that application, he raised eight claims for relief: (1) the evidence was insufficient to support the conviction; (2) the sentence was unconstitutionally excessive and vindictive; (3) ineffective assistance of trial counsel due to a conflict of interest; (4) the trial court failed to instruct the jury on negligent homicide; (5) the trial court refused to allow the defense to use a grand jury transcript during cross-examination in violation of due process and his right to confrontation; (6) the State failed to present the conflicting version in the grand jury transcript and exploited false testimony by a state witness; (7) trial counsel was ineffective for failing to call a psychiatric witness during the suppression hearing; and (8) appellate counsel was ineffective for failing to raise several claims on direct appeal. Johnson sought and was granted a stay of his federal proceedings based on the pending state-court application for post-conviction relief, which included additional claims for relief.21

On or about October 30, 2015, Wainwright was substituted as counsel of record for Regan in the state-court post-conviction proceedings.22 In February 2016, the district court ordered the State to file any procedural objections to the pending application for post-conviction relief. On March 4, 2016, the State filed its procedural objections and asserted that summary dismissal was proper under Louisiana Code of Criminal Procedure articles

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930.4 and 930.8.23 On January 31, 2017, the district court granted the State's procedural objections and denied relief on those grounds.24 On April 25, 2017, his related writ application was denied without stated reasons by the Louisiana Fourth Circuit.25 On April 27, 2018, the Louisiana Supreme Court likewise denied relief.26

On May 23, 2018, Johnson moved to vacate the stay and proceed with his federal application.27 The motion was granted and the State was ordered to file its response.28 On September 20, 2018, the State filed a response to the federal application.29 The State's response concedes that the federal application is timely, but argues that the claims are unexhausted and procedurally defaulted.

On March 14, 2019, the Court ordered the parties to submit supplemental briefing on the issue of vindictiveness of the sentence.30 The State filed its supplemental brief on...

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