Johnson v. Genovese

• Decision Date: 30 March 2018
• Docket Number: NO. 3:14-cv-02305,3:14-cv-02305
• Parties: JOSEPH LAMONT JOHNSON, Petitioner, v. KEVIN GENOVESE, Warden, Respondent.
• Court: U.S. District Court — Middle District of Tennessee

JOSEPH LAMONT JOHNSON, Petitioner, v. KEVIN GENOVESE, Warden,¹ Respondent.

NO. 3:14-cv-02305

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION

March 30, 2018

CHIEF JUDGE CRENSHAW

MEMORANDUM OPINION

Petitioner Joseph Lamont Johnson was convicted by a jury of two counts of aggravated robbery, one count of aggravated assault, and one count of felony evading arrest and is now serving a fifty-four-year sentence imposed by the Davidson County Criminal Court on March 3, 2005. (Doc. No. 13-1, PageID# 131, 275-78.) Johnson filed this habeas corpus action under 28 U.S.C. § 2254 on November 26, 2014. (Doc. No. 1.) Respondent has answered Johnson's petition (Doc. No. 14) and filed the state court record (Doc. No. 13). After Johnson's counsel moved to withdraw (Doc. No. 17), this Court appointed the Office of the Federal Public Defender for the Middle District of Tennessee to represent Johnson (Doc. No. 23). On January 12, 2017, Johnson filed a reply to Respondent's answer to his petition. (Doc. No. 30.) Respondent does not dispute thatJohnson's petition is timely and that this is his first habeas petition related to this conviction. (Doc. No. 14, PageID# 1299.)

Johnson requests an evidentiary hearing on the issues raised in his petition. (Doc. No. 1, PageID# 13; Doc. No. 30, PageID# 1411.) This Court need not hold an evidentiary hearing where "the record refutes the applicant's factual allegations or otherwise precludes habeas relief." Schriro v. Landrigan, 550 U.S. 465, 474 (2007). The Court must consider Johnson's claims in light of the "deferential standards prescribed by [the Antiterrorism and Effective Death Penalty Act (AEDPA)]," under which a state court's factual findings are presumed correct subject to rebuttal by clear and convincing evidence. Id.; 28 U.S.C. § 2254(e)(1). Having reviewed Johnson's arguments and the underlying record, the Court finds that an evidentiary hearing is not required. Johnson is not entitled to relief under AEDPA's standards. His petition will be denied and this case will be dismissed.

I. Procedural History

The state prosecution of Johnson emerged from the November 17, 2003 robbery of a Taco Bell on Brick Church Pike in Nashville. State v. Johnson, No. M2007-01644-CCA-R3-CD, 2009 WL 2567729, at *1 (Tenn. Crim. App. Aug. 18, 2009) ("Johnson I"); (Doc. No. 13-13). On February 6, 2004, Johnson was indicted by the Davidson County grand jury and charged with three counts of aggravated robbery, two counts of aggravated assault, one count of evading arrest, and one count of driving on a suspended license. (Doc. No. 13-1, PageID# 134, 139-40, 146-50.) After pre-trial developments that resulted in the dropping out of several charges (see, e.g., id. at PageID# 163, Doc. No. 30 at PageID# 3 n. 4), Johnson went to trial before a jury on December 6, 2004, on two counts of aggravated robbery, one count of aggravated assault, and one count of evading arrest. (Doc. No. 13-1 at PageID# 165-66.) The jury found Johnson guilty as charged. (Id. at PageID#166; Doc. No. 13-5, PageID# 611.) After reducing one of Johnson's aggravated robbery convictions to aggravated assault due to double jeopardy concerns (Doc. No. 13-15, PageID# 975), the Davidson County Criminal Court (hereinafter, the "trial court") sentenced Johnson to an aggregate term of fifty-four years. Johnson I, 2009 WL 2567729, at *1; (Doc. No. 13-1, PageID# 275-78). Johnson was represented at trial by attorney Paul Walwyn. (Doc. No. 1, PageID# 6.)

Represented by attorney David Wicker, Johnson appealed his conviction to the Tennessee Court of Criminal Appeal ("TCCA"). In his amended brief to that court, Johnson argued that the evidence at trial was insufficient to support his convictions, that the trial court erred in instructing the jury on the lesser included offenses of aggravated assault, and that the sentences imposed were excessive and should not have been made consecutive. (Doc. No. 13-11, PageID# 795-805.) On August 18, 2009, the TCCA held that the trial court had improperly instructed the jury that reckless endangerment was a lesser included offense of aggravated assault but that the error was harmless because Johnson was not found guilty of reckless endangerment. Johnson I, 2009 WL 2567729, at *1. The TCCA rejected Johnson's other arguments. Id. The Tennessee Supreme Court denied permission to appeal on February 22, 2010. (Doc. No. 13-15, PageID# 934.)

Johnson filed a pro se petition for post-conviction relief in the trial court on September 27, 2010. (Id. at PageID# 935.) On July 2, 2012, after being briefly represented by two other lawyers (id. at PageID# 951-54), Johnson filed an amended petition with the aid of attorney David Collins arguing that his trial counsel was constitutionally ineffective (id. at PageID# 955-69). The trial court held an evidentiary hearing on Johnson's ineffective assistance claims on August 10, 2012, and issued an order denying those claims on September 18, 2012. (Id. at PageID# 1062-70.)

Johnson appealed the trial court's denial of his petition for post-conviction relief, filing his appellate brief (again with counsel David Collins) on April 26, 2013. (Doc. No. 13-18.) On appeal,Johnson argued five theories of ineffective assistance of trial counsel. (Id. at PageID# 1194.) In an opinion issued on February 27, 2014, the TCCA affirmed the trial court's decision. Johnson v. State, No. M2012-02310-CCA-R3-PC, 2014 WL 793636, at *1 (Tenn. Crim. App. Feb. 27, 2014) ("Johnson II"); (Doc. No. 13-22). On July 14, 2014, the Tennessee Supreme Court again denied permission to appeal. (Doc. No. 1-7.)

II. Statement of Facts

In considering Johnson's appeal of his conviction on direct review, the TCCA provided the following summary of the evidence presented at trial:

At trial, Sadek "Sam" Alshinawa² testified that on November 17, 2003, he was the manager at a Taco Bell restaurant on Brick Church Pike in Nashville. Approximately ten minutes after the store opened at 10:00 that morning, Ebony Moore, who was working the register in the dining area, came into the office, where Alshinawa was working, and told him that "somebody is try[ing] to rob us." He and Moore then went to the dining area, where he saw a man, whom he identified as the defendant, jump onto the counter. Alshinawa said that the defendant wore a "dark maroon" jacket with a hood covering his head. Moore telephoned the police and Alshinawa pushed a button to activate a silent alarm.

Alshinawa said that once the defendant got onto the counter, the defendant grabbed Moore's hair with his left hand while keeping his right hand in his pocket. Alshinawa testified that the defendant's right pocket appeared "heavy," as if a gun were in the pocket, and that the defendant did not remove his right hand from his pocket during the incident. Alshinawa said that during the incident he felt frightened and that Moore cried and told him, "Please help me." He said that at one point the defendant, who kept his hand inside the pocket with his index finger out and the thumb up, told him, "If you don't give me the money, I will hurt her." Alshinawa gave the defendant the money from the store safe, and Moore opened the cash register and gave him the money from the register. He said that the store usually kept around $600 on hand and that the defendant took approximately $200 to $300, some of which was in $5 and $1 bills. The defendant also demanded the store's surveillance videotape; Alshinawa said that the store did not have a working surveillance system but that he gave the defendant a training video.

After the manager gave the defendant the video, the defendant "grab[bed] [Moore by] her hair, again. He hit her in the wall. . . . I believe she hit . . . her head. . . . " After the defendant pushed Moore into the wall, he ran out the restaurant's front door. Alshinawa ran out the back door, carrying a metal object of some sort. He saw the defendant get into the driver's seat of a "goldish or silver" car in which another man wearing a brown jacket was seated in the front passenger seat. Alshinawa used the metal object to bust out three of the car's windows. The car sped off as the police arrived. Later that day, the police returned to the store with the defendant. Alshinawa told the police that he was sure that the defendant was the person who robbed the store; he testified that he and the defendant shoved each other at one point during the robbery and that he saw the defendant's face at that point. Alshinawa said that he was "100% certain" the man whom he saw in the car's passenger seat the day of the robbery was Willie Harris, the co-defendant at trial.

On cross-examination, Alshinawa said that the defendant kept his right hand in his pocket from the time he came into the store until the time he left. He said that he put the money inside the defendant's jacket pocket after being told to do so by the defendant. However, Alshinawa did not specify into which pocket he placed the money. He reiterated that the defendant's right jacket pocket looked like it contained "something heavy" and that there was "no way" the pocket could have been empty.

Several members of the Metropolitan Nashville Police Department testified regarding their involvement in this case. Officer Ben Ward, the first officer to testify, said that he arrived at the Taco Bell just as a silver Pontiac backed out of a parking space in the restaurant's parking lot. Officer Ward then saw Alshinawa leave the restaurant and bust out the car's windows before the car sped from the parking lot and drove onto Brick Church Pike. Officer Ward then chased the Pontiac in his police cruiser. The Pontiac led police through both business areas and residential neighborhoods; Officer Ward said that the defendant's car reached speeds of eighty miles per hour on straight stretches of highway in the business areas and sixty-five miles per hour in the residential areas. He said that during the chase, two separate police

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