Johnson v. Champion

• Citation: 288 F.3d 1215
• Decision Date: 26 April 2002
• Docket Number: No. 01-6183.,01-6183.
• Parties: Robert Grady JOHNSON, Petitioner-Appellant, v. Ron CHAMPION, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

288 F.3d 1215

Robert Grady JOHNSON, Petitioner-Appellant, v. Ron CHAMPION, Respondent-Appellee.

No. 01-6183.

United States Court of Appeals, Tenth Circuit.

April 26, 2002.

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Michael J. Barta and Kelli C. McTaggart, Baker Botts L.L.P., Washington, DC, on the brief for Petitioner-Appellant.

W.A. Drew Edmondson, Attorney General of Oklahoma, and Diane L. Slayton, Assistant Attorney General, Oklahoma City, OK, on the brief for Respondent-Appellee.

Before KELLY, HOLLOWAY, and BRISCOE, Circuit Judges.

BRISCOE, Circuit Judge.

Petitioner Robert Grady Johnson, an Oklahoma state prisoner serving four consecutive life sentences for four counts of first degree felony murder, appeals the district court's dismissal of his 28 U.S.C. § 2254 habeas petition. We exercise jurisdiction pursuant to 28 U.S.C. § 1291, reverse the judgment of the district court, and remand with instructions to grant conditional habeas relief to Johnson.

I.

On December 14, 1984, during a robbery at the First Bank of Chattanooga in Geronimo, Oklahoma, three bank employees and one bank customer were killed. Three other bank customers were shot and severely wounded, and there was an unsuccessful attempt to shoot an infant girl. Johnson and Jay Wesley Neill were arrested and charged with the offenses in the District Court of Comanche County, Oklahoma. Johnson and Neill were tried together in May 1985 and each was convicted of four counts of first degree murder, three counts of shooting with intent to kill, and one count of attempted shooting with intent to kill. The jury recommended death sentences for Johnson and Neill on each of the murder counts. On direct appeal, the Oklahoma Court of Criminal Appeals (OCCA) reversed the convictions and sentences and remanded the cases for new trials, concluding that Johnson and Neill were improperly tried together because Johnson's and Neill's defenses were mutually antagonistic — each defendant asserted the other was solely responsible for commission of the offenses. Neill v. State, 827 P.2d 884, 887-88 (Okla.Crim.App. 1992).

In 1993, Johnson was separately retried and convicted of the same eight crimes. He was sentenced to four life sentences without parole on the murder counts, three twenty-year sentences on the shooting with intent to kill counts, and a ten-year sentence on the attempted shooting count, with all sentences to be served consecutively. The trial court entered judgment on July 28, 1993.

On August 5, 1993, Johnson's trial counsel filed a notice of intent to appeal and a designation of record in the state district court. An attorney employed by the Oklahoma Indigent Defense System (OIDS) was appointed to represent Johnson on appeal. On October 26, 1993, the attorney filed a petition in error on Johnson's behalf with the OCCA. Another OIDS attorney was appointed to represent Johnson after the first attorney withdrew.

After the filing of Johnson's petition in error, the OCCA granted the court reporter three sixty-day extensions to file the trial transcripts (under Oklahoma law, the filing of the trial transcripts triggered the deadline for a criminal defendant to file his or her appellate brief). The third extension was granted after a show cause hearing on January 12, 1994, attended by the court reporter and Johnson's counsel. On March 15 and 17, 1994, the court reporter filed the trial transcripts with the OCCA. According to Johnson, a notice of the filing was sent to the attorney general's office, but not to Johnson's counsel.

Approximately seven months passed after the filing of the transcripts without the filing of an appellate brief on Johnson's behalf. On October 19, 1994, the OCCA, acting sua sponte, entered an order dismissing Johnson's appeal for failure to comply with Rule 3.4 of the Rules of the Court of Criminal Appeals.¹

On November 17, 1994, Johnson's counsel filed with the OCCA a motion to reinstate the appeal. Counsel claimed that a notice of completion of the transcripts had not been filed with the OCCA, and thus the sixty-day time period for filing a brief had not started. On December 29, 1994, the OCCA denied the motion to reinstate the appeal, finding that "[t]he transcripts were filed with the Clerk of this Court on March 15, 1994 and March 17, 1994, and the court reporter filed a notice of completion with the Clerk of this Court on March 17, 1994." App. at 326. The OCCA further noted that, under its rules, it was Johnson's attorney's responsibility "to ensure the records necessary for commencing the appeal [we]re completed and filed in a timely manner." Id. The OCCA concluded that "the only remedy available to [Johnson] upon dismissal of his appeal [wa]s to obtain an appeal out of time" by first filing an application for post-conviction relief in state district court and "requesting an appeal out of time." Id. at 326-27.

On April 13, 1995, Johnson's counsel requested a "recommendation for a late appeal" from the state district court Id. at 329. The request stated that Johnson's appeal was dismissed "[b]ecause of a misunderstanding as to when the appellate brief was due." Id. The request was denied on June 20, 1995.

On or about August 16, 1995, Johnson's counsel filed an application for appeal out of time. The OCCA denied the application on September 15, 1995, noting that the application "set[ ] forth no facts to support" the contentions that Johnson "always desired to appeal his conviction," "never consented to the abandonment of the appeal," and "ha[d] been denied an appeal through no fault of his own." Id. at 334. The OCCA again emphasized that "the proper procedure [wa]s to file an application for post-conviction relief in [state] District Court requesting an appeal out of time." Id. The OCCA further emphasized that the granting of such relief would depend upon Johnson's "ability to prove he was denied an appeal through no fault of his own." Id.

On October 16, 1995, Johnson's counsel filed an application for post-conviction relief in state district court asserting that Johnson "still desire[d] to appeal his conviction and ha[d] never agreed to abandon his appeal." Id. at 53. The application further stated that Johnson's counsel "acknowledge[d] that the appeal was dismissed for failure to file a brief, and through no fault" of Johnson. Id. The state district court denied the application on December 29, 1995, concluding that Johnson had "failed to substantiate any sufficient reason ... for his failure to file a direct appeal," and had likewise "failed to substantiate any sufficient evidence that [his] counsel's conduct fell outside the wide range of reasonable professional assistance." Id. at 55. The court further concluded that Johnson had "failed to show that counsel's performance was deficient, that is, that ... counsel's errors were so serious that counsel was not functioning as the `counsel' guaranteed by the Sixth Amendment," or "that any such deficient performance resulted in a trial in which result was not reliable." Id. at 55-56. The state district court "denie[d] the ... Application ... in regard to the proposition of ineffective assistance of counsel." Id. at 56.

Johnson appealed the denial of his application for post-conviction relief. He asserted generally that "[a] criminal defendant is entitled to effective assistance of counsel on first appeal as of right and he is entitled to appeal out of time when denied effective assistance of counsel to perfect direct appeal." Id. at 46. Johnson then asserted, as he had in state district court, that his original appeal was dismissed due to his attorney's "failure to file a brief, and through no fault of" his own. Id. at 45. More specifically, Johnson alleged that "the failure to file the brief was through a misunderstanding [on the part of his counsel] as to when the brief was due." Id. at 47. On April 4, 1996, the OCCA remanded the case to state district court with directions to conduct an evidentiary hearing to determine (1) whether Johnson's "appeal was not timely perfected because of appellate counsel"; (2) "if so, whether [Johnson] was any part of the problem"; and (3) whether Johnson "ha[d] been denied an appeal through no fault of his own." Id. at 37.

The state district court conducted an evidentiary hearing on June 25, 1996. After hearing brief testimony from Johnson, the court found that Johnson's appeal was not timely perfected "because of appellate counsel" (presumably meaning that appellate counsel was negligent in failing to timely file a brief). Id. at 374. The court also found that Johnson "contributed to the negligence involved in failing to timely perfect his appeal." Id. at 375. In support of this finding, the court noted that (a) Johnson had "previously been convicted on two separate occasions and had been advised twice of his rights to appeal, including the time limits on appeal," id. at 374-75, (b) Johnson had written at least two letters to the state district court and had thus "shown the ability to communicate and inquire as to his status with th[e] Court," id. at 375, and (c) Johnson "made no inquiry of this Court or the Court of Criminal Appeals about the status of his appeal" during the time period from March 17, 1994 (when the court reporter filed the transcripts with the OCCA) and October 17, 1994 (when the OCCA dismissed the appeal). Id. The court concluded that all of these factors were "circumstantial evidence from which [it] c[ould] conclude that there was an intent by [Johnson] and/or his counsel to abandon this appeal," and that the statements of Johnson and his counsel to the contrary were "not sufficient ... to overcome the enormous time lapse which [it] f[ou]nd indicate[d] that the appeal was abandoned." Id. at 376. The state district court concluded by addressing Johnson and his counsel directly:

Mr. Johnson, you've not met [your] burden. Your mere words alone are not sufficient for this Court to overlook the tremendous amount of time that...