Johnson v. Gibson, 96-6336

• Decision Date: 26 February 1999
• Docket Number: No. 96-6336,96-6336
• Citation: 169 F.3d 1239
• Parties: 1999 CJ C.A.R. 1303 Malcolm Rent JOHNSON, Petitioner--Appellant, v. Gary L. GIBSON, Warden, Respondent--Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1239

169 F.3d 1239

1999 CJ C.A.R. 1303

Malcolm Rent JOHNSON, Petitioner--Appellant, v. Gary L. GIBSON, Warden, Respondent--Appellee.

No. 96-6336.

United States Court of Appeals Tenth Circuit.

Feb. 26, 1999.

Vicki Ruth Adams Werneke, Assistant Federal Public Defender (Randy A. Bauman, Assistant Federal Public Defender, with her on the briefs), Death Penalty Federal Habeas Corpus Division, Oklahoma City, Oklahoma, for the Petitioner-Appellant.

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

Before SEYMOUR, ANDERSON and LUCERO, Circuit Judges.

ORDER

This matter is before the court on petitioner Malcolm Rent Johnson's Petition for Rehearing. The petition is denied. Mr. Johnson correctly maintains, however, that the opinion of December 28, 1998, did not correctly address one issue raised in his appeal. The accompanying amended opinion addresses that issue.

The suggestion for rehearing en banc was transmitted to all of the judges of the court who are in regular active service as required by Fed. R.App. P. 35. As no member of the panel and no judge in regular active service on the court requested that the court be polled, the suggestion is also denied.

The opinion filed on December 28, 1998, is withdrawn and reissued. A copy of the amended opinion is attached. The mandate shall issue forthwith.

LUCERO, Circuit Judge.

Malcolm Rent Johnson filed an amended petition for habeas corpus pursuant to 28 U.S.C. § 2254 in February 1994, in which he raised thirty-one grounds of constitutional error in his conviction and death sentence. The United States District Court for the Western District of Oklahoma denied this petition in its entirety on August 12, 1996, finding some of the asserted claims procedurally barred and the rest meritless. Johnson now appeals the district court's denial of the writ, raising thirteen claims of error, alleging violations of the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. In addressing his claims, we hold, inter alia, that a party challenging as discriminatory the exercise of peremptory challenges pursuant to Batson v. State. of Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), has the burden of production in seeking to rebut as pretextual facially neutral justifications proffered by the party exercising the challenges. We have jurisdiction pursuant to 28 U.S.C. § 1291, and affirm.

I

On the evening of October 27, 1981, Frank Thompson found his aunt, Ura Alma Thompson an elderly white woman, deceased on the floor of her Oklahoma City apartment. Following an autopsy, the medical examiner found evidence of forcible sexual intercourse before death. He concluded that although Thompson was not strangled, she died of asphyxiation either because of pressure on her chest during the intercourse or because her assailant covered her mouth and nose.

On October 27, 1981, police arrested Johnson on an unrelated weapons charge at his apartment, where they seized several items later identified as belonging to Thompson. On October 28, 1981, the police obtained hair, saliva, and blood samples from Johnson. In interviews with police after his arrest, Johnson denied knowledge of the homicide, but when told that semen found in Thompson's body matched his own, he reportedly responded, "you couldn't have found my semen in her, I didn't come." Trial Tr. at 913.

At the first stage of trial, Joyce Gilchrist, a state forensic chemist, testified that semen found on the bed coverings in Thompson's apartment matched Johnson's blood type. She also testified that several strands of hair found at the scene of the crime were "consistent microscopically" with petitioner's hair. Trial Tr. at 1033, 1038-39. The defense did not present any witnesses. Petitioner was found guilty on March 22, 1982.

At the second stage of trial, the state introduced evidence about Johnson's prior Illinois convictions for raping two different women, two separate charges of armed robberies, and one burglary. Four women testified that petitioner had raped or attempted to rape them or attempted to rob them with a firearm. These latter offenses were unadjudicated at the time of trial.

Sixteen of Johnson's relatives testified that he came from a broken and abusive home, and that at the age of two he spent two months, often under restraint, in the hospital for an undiagnosed debilitating illness. They also testified that Johnson, the oldest of four children, was responsible for his siblings' care and for other household duties. His girlfriend testified that he assumed a parental role with her five-year old son. Neither side offered psychiatric testimony.

The court submitted three aggravating circumstances for the jury's consideration: (1) prior conviction of a felony; (2) continuing threat to society; and (3) especially heinous, cruel, or atrocious killing. The jury rejected the third aggravator but found that the other two outweighed the evidence of mitigation. Petitioner was sentenced to death.

II

Before we deal with the merits of petitioner's claim, we address the applicability of the habeas corpus amendments enacted as Title I of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), signed into law on April 24, 1996. Mr. Johnson filed this amended petition for federal habeas corpus relief in the district court on February 11, 1994. Thus, the pre-AEDPA version of the Act applies. ¹ Cf. United States v. Kunzman, 125 F.3d 1363, 1364 n. 2 (10th Cir.1997) (citing Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 2068, 138 L.Ed.2d 481 (1997)). We grant petitioner a certificate of probable cause as required under the pre-AEDPA version of the statute.

III

Johnson alleges that the trial court unconstitutionally denied him, an indigent defendant, the "basic tools of an adequate defense" in violation of his rights under the Due Process Clause. See Ake v. Oklahoma, 470 U.S. 68, 77, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985) (quoting Britt v. North Carolina, 404 U.S. 226, 227, 92 S.Ct. 431, 30 L.Ed.2d 400 (1971)). He alleges three specific violations of Ake: denial of funds for psychiatric assistance; denial of funds for a forensic chemistry expert; and denial of funds for counsel to travel to Chicago to help prepare mitigation evidence. "In reviewing the district court's denial of [the Ake ] claim, we review the court's factual findings under the clearly erroneous standard and its legal conclusions de novo." Castro v. Oklahoma, 71 F.3d 1502, 1510 (10th Cir.1995). Because the Court decided Ake after Mr. Johnson's trial, but while his case was still pending on direct appeal, application of Ake to this case presents no retroactivity problem. See id. at 1512.

A. Psychiatric Expert

Johnson repeatedly requested funds to retain a psychiatric expert. The trial court denied these requests, and petitioner presented no psychiatric evidence at either the guilt or sentencing phase of trial. The district court denied habeas relief, finding that Petitioner had failed to make the requisite preliminary showing that his sanity would be a significant factor at trial.

1. Guilt Phase

Due process requires that "when a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense." Ake, 470 U.S. at 83, 105 S.Ct. 1087. The defendant must, however, show more than "general allegations" and "undeveloped assertions." See Liles v. Saffle, 945 F.2d 333, 336 (10th Cir.1991). The question in a case such as this, where "Ake was decided after trial but while direct appeal was pending," is "whether, upon review of the entire record, the habeas petitioner could have made a threshold showing under Ake that his sanity at the time of the offense was to be a significant factor at trial." Moore v. Reynolds, 153 F.3d 1086, 1109 (10th Cir.1998).

We agree with the district court that petitioner does not make the threshold showing with respect to the guilt phase. He simply fails to present, upon consideration of the entire record, evidence that his sanity at the time of the offense was likely to be a significant factor at trial. Cf. Castro, 71 F.3d at 1513-14. Although petitioner offers an expert neuropsychological evaluation as evidence of the type of psychiatric testimony he would have presented, this report presents no evidence tending to demonstrate that he was incompetent at the time of the crime. See Moore, 153 F.3d at 1109.

2. Sentencing Phase

Johnson further contends that the denial of funds for psychiatric assistance was unconstitutional in light of the State's use of the "continuing threat" aggravating circumstance. At the sentencing phase, the State did not present psychiatric evidence on the "continuing threat" aggravator. It presented evidence of Johnson's prior convictions on rape, robbery, and burglary charges as well as evidence of four unadjudicated offenses including rape, attempted rape, burglary, and robbery. We have held, however, that "[a]n expert must be appointed if the State presents evidence, psychiatric or otherwise, of the defendant's future dangerousness or continuing threat to society during the sentencing phase, and the indigent defendant establishes the likelihood his mental condition is a significant mitigating factor." Castro, 71 F.3d at 1513 (emphasis added).

We conclude that Johnson has met the threshold showing of a likelihood that mental condition could have been a mitigating factor at the sentencing stage. See Moore, 153 F.3d at 1110. He presents us with a "neuropsychological evaluation" stating he "could be treated ... in the prison setting" in a way that "would control his behavior and...