Johnson v. Gibson

• Citation: 254 F.3d 1155
• Decision Date: 27 April 2001
• Docket Number: No. 00-7008,00-7008
• Parties: (10th Cir. 2001) MARK DAVID JOHNSON, Petitioner - Appellant, v. GARY GIBSON, Warden, Oklahoma State Penitentiary, Respondent - Appellee
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 1155

254 F.3d 1155 (10th Cir. 2001)

MARK DAVID JOHNSON, Petitioner - Appellant, v. GARY GIBSON, Warden, Oklahoma State Penitentiary, Respondent - Appellee.

No. 00-7008

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

April 27, 2001

Ordered Published June 27, 2001

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF OKLAHOMA (D.C. No. 98-CV-331)

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Stephen J. Greubel, Tulsa, Oklahoma, for Petitioner - Appellant.

William L. Humes, Assistant Attorney General (and W.A. Drew Edmondson, Attorney General, on the brief), Oklahoma City, Oklahoma, for Respondent - Appellee.

Before KELLY, BALDOCK, and HENRY, Circuit Judges.

PAUL J. KELLY, Jr., Circuit Judge.

Petitioner-appellant Mark David Johnson appeals the district court's denial of habeas relief, see 28 U.S.C. 2254, from his Oklahoma first degree malice murder conviction and death sentence. Johnson was convicted of acting with Ricky Masquat to beat and set afire Billy Webb, resulting in Webb's death. Johnson and Masquat lived and worked at an apartment complex in Norman, Oklahoma. The thirty-three year old victim lived with his mother in that same complex. Residents described the victim as friendly, but a little strange, slow, childlike, and as having mental problems. He spent most of his time walking around the apartment complex and playing with the children who lived there. Johnson expressed concerns that Webb would harm the children. Three days before the murder, Johnson, in Masquat's presence, stated to the apartment manager that Webb was evil and that if Johnson ever thought that Webb would hurt the manager's children, Johnson would take a baseball bat to Webb, pour gasoline on him and burn him up--then no one would ever have to worry about Webb again.

Three days later, Johnson, Masquat and Webb left the apartment complex in Masquat's pickup truck. Webb had told another resident that he was going "partying." The next morning, the victim was found on a deserted country road one hundred miles south of Norman. He had suffered second and third degree burns over more than ninety-five percent of his body, wounds which would eventually prove fatal. He had also been hit over the head, although that wound was itself not life threatening. Despite his injuries, Webb remained alert and coherent for approximately seventeen hours after the attack. He was able to describe Johnson and Masquat as his attackers, indicating Johnson had hit him over the head with a baseball bat and Masquat had doused him with gasoline and set him on fire. Webb said the pair had accused him of "messing" with some children, but that was not true.

The highway patrol arrested Johnson and Masquat shortly after the attack. In the bed of Masquat's truck was a baseball bat with blood matching the victim's blood type, a plastic container that tests showed had previously contained gasoline and several empty beer bottles. A cap fitting the plastic gasoline container in the truck bed was found near the site of the attack, as was a beer bottle like the ones found in Masquat's truck. Tests revealed traces of gasoline on Johnson's shorts, and blood, similar to Webb's, on Johnson's shirt. Masquat had blood spots, of the same type as the victim, on his boots and the lower ten inches of his jeans, and singe or burn marks on his shirt.

The State tried Johnson and Masquat separately. At his trial, Johnson's defense was that he had only hit Webb over the head with a baseball bat, but that it was Masquat who had doused Webb with gasoline and set him on fire. Johnson also argued that, in light of his brain damage and low IQ, combined with his having drunk alcohol that night, he was unable to form the requisite intent to kill Webb. The jury rejected these defenses and convicted Johnson of first degree malice murder.

At sentencing, the jury found the two alleged aggravating factors--the murder was especially heinous atrocious or cruel and Johnson was a continuing threat to society. The jury sentenced Johnson to death. The Oklahoma Court of Criminal Appeals affirmed Johnson's conviction and sentence, see Johnson v. State, 928 P.2d 309 (Okla. Crim. App. 1996), and denied post-conviction relief in an unpublished decision.

Johnson then filed a federal habeas petition. Because he filed that petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), that act governs this appeal. See Williams v. Taylor, 529 U.S. 362, 120 S. Ct. 1495, 1518 (2000). Johnson, therefore, will not be entitled to habeas relief unless he can establish that the state court determination of his claims was contrary to, or an unreasonable application of, clearly established Supreme Court precedent, see 28 U.S.C. 2254(d)(1), or an unreasonable determination of the facts in light of the evidence. See id. 2254(d)(2). We presume state court factual findings are correct, absent clear and convincing evidence to the contrary. See id. 2254(e)(1). Where the state courts did not address the merits of a habeas claim, we instead review the district court's legal determinations de novo, and any factual findings only for clear error. See Thomas v. Gibson, 218 F.3d 1213, 1220 (10th Cir. 2000). The district court granted Johnson a certificate of appealability on the following claims. See 28 U.S.C. 2253.

I. Voir dire.

A. Failure to excuse for cause juror who would automatically vote for death sentence. Johnson asserts the trial judge, contrary to Morgan v. Illinois, 504 U.S. 719, 729 (1992), failed to excuse for cause prospective juror Whitely, after she indicated she would automatically vote for death if the jury convicted Johnson of first degree murder. Defense counsel, however, passed Whitely for cause. The Oklahoma Court of Criminal Appeals, therefore, deemed Johnson to have waived this claim. Johnson, 928 P.2d at 314.

As cause excusing this default, Johnson now argues that his trial attorney was ineffective for failing to seek Whitely's removal for cause. Johnson, however, never raised this particular ineffective assistance claim in state court, either on direct appeal or in his state post-conviction application. This ineffective-assistance claim, therefore, remains unexhausted and the state courts would now deem it procedurally barred. See, e.g., Coleman v. Thompson, 501 U.S. 722, 735 n.* (1991); see also Medlock v. Ward, 200 F.3d 1314, 1323 (10th Cir.) (recognizing as adequate and independent Oklahoma's procedural bar applicable to ineffective-assistance claims petitioner failed to raise in initial state post-conviction proceedings), cert. denied, 121 S. Ct. 197 (2000). As such, this ineffective-assistance claim cannot provide cause excusing Johnson's default. See Edwards v. Carpenter, 529 U.S. 446, 120 S. Ct. 1587, 1591-92 (2000). He fails to offer any further cause excusing the default of this ineffective-assistance claim. See id. at 1592. Nor does he allege his actual innocence, such that he would meet the fundamental miscarriage of justice exception to his default. See, e.g., Schlup v. Delo, 513 U.S. 298, 321 (1995).

Even if we did address this claim's merit, however, it would not warrant habeas relief. Defense counsel exercised a peremptory challenge to remove Whitely. She, therefore, did not sit on Johnson's jury. The loss of that peremptory challenge alone is insufficient to establish a constitutional deprivation. See Ross v. Oklahoma, 487 U.S. 81, 88 (1988). Rather, this claim fails because Johnson is unable to show that the twelve jurors who did sit on his jury were other than fair and impartial. See id. at 85-86, 88.

B. Failure to excuse two jurors who indicated Johnson should testify if he was innocent. Johnson also challenges the trial court's refusal to remove for cause prospective jurors Miller-Reed and Robertson, who indicated during voir dire that if Johnson was innocent, he should waive his Fifth Amendment privilege and testify. Because Johnson exercised a peremptory challenge to remove Miller-Reed, any error in failing to remove her for cause would again not amount to a constitutional violation. See id. at 88. Rather, the sole question here is whether Juror Robertson, who did sit on Johnson's jury, was impartial. See id. at 85-86, 88.

Although Robertson did express her belief that Johnson should testify if he was innocent, the trial court later explained in detail Johnson's Fifth Amendment privilege not to testify and the importance of that right. Juror Robertson then stated she understood and that she would follow the court's instructions to the best of her ability.

In refusing to excuse Robertson for cause, the trial court found that she would be impartial. That is a factual finding, see Patton v. Yount, 467 U.S. 1025, 1036 (1984), which we presume correct, absent clear and convincing evidence to the contrary, see 28 U.S.C. 2254(e)(1). See also, e.g., Battenfield v. Gibson, 236 F.3d 1215, 1224 n.3 (10th Cir. 2001). Further, we afford special deference to the trial court's finding because it turns on the juror's credibility and demeanor, matters which the trial court is in the best position to assess. See Patton, 467 U.S. at 1037 n.12, 1038-40, 1038 n.14; see also, e.g., Wainwright v. Witt, 469 U.S. 412, 424-26 (1985).

Here, although Juror Robertson's voir dire answers were equivocal, the trial court, aided by its assessment of her demeanor and credibility, could properly resolve any ambiguity in favor of the State. See Witt, 469 U.S. at 434-35 (pre-AEDPA case; presuming correctness of state trial court's factual finding concerning juror's bias, despite any ambiguity in juror's responses, in light of trial court's assessment of juror's demeanor); see also Moore v. Gibson, 195 F.3d 1152, 1170 (10th Cir. 1999), cert. denied, 120 S. Ct. 2206 (2000). Johnson has failed to rebut, by clear and convincing evidence, the trial court's finding that Juror Robertson could "lay aside [her] opinion and render a...