Johnson v. Hatch, CIV 10-0745 JCH/KBM
| Decision Date | 07 February 2012 |
| Docket Number | CIV 10-0745 JCH/KBM |
| Parties | PAUL L. JOHNSON, Petitioner, v. TIMOTHY HATCH, Warden, Northeast New Mexico Detention Facility, and GARY G. KING, Attorney General for the State of New Mexico, Respondents. |
| Court | U.S. District Court — District of New Mexico |
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THIS MATTER is before the Court on Paul Johnson's pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Because he filed after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), its standards apply to this case. See e.g., Abdul-Kabir v. Quarterman, 550 U.S. 233, 246 (2007); DeLozier v. Sirmons, 531 F.3d 1306, 1319 (10th Cir. 2008), cert. denied, 129 S. Ct. 2058 (2009). All of the issues can be resolved on the present record. Therefore, further expansion and an evidentiary hearing are unnecessary. See e.g., Schriro v. Landrigan, 550 U.S. 465, 474 (2007); Hooks v. Workman, 606 F.3d 715, 730-31 (10th Cir. 2010); Alverson v. Workman, 595 F.3d 1142, 1164 (10th Cir.), cert. denied, 131 S. Ct. 512 (2010); Rules 6-8, RULES GOVERNING SECTION 2254 CASES IN THE UNITED STATES DISTRICT COURTS. I recommend that the petition be denied.
After shooting and killing an acquaintance over a debt, Petitioner turned himself in and confessed. The crime occurred spur-of-the-moment. While riding in a car driven by his wife Marie, Petitioner spotted the victim on the side of the street. Petitioner instructed his wife to pull over the car, in which his nine-year-old daughter Angelique was also a passenger. Petitioner then got out of the car, confronted the victim, they argued, and Petitioner fired his pistol. After Petitioner unsuccessfully attempted to suppress his statements to the police, trial commenced.
Petitioner testified that the victim, who was known to carry a gun, put his hand in this pocket and started to withdraw something metallic. The jury did not credit Petitioner's version of the events. Although they acquitted him of some charges, they found him guilty of second-degree murder. To do so, they had to find that Petitioner did not shoot as a result of sufficient provocation and that he did not act in self-defense. They also found Petitioner guilty of child abuse by negligent endangerment and of tampering with evidence. With firearm and uncontested habitual offender enhancements, Petitioner is serving a twenty-one-year prison sentence. See, e.g., Doc. 16-1 at 4-6, 10-16, 22-23, 40-43; Trial Transcript 1/27/09 at 109-131; Trial Transcript 1/28/09 at 25-56; Trial Transcript 1/29/09 at 28-89; Record Proper at 231, 254-61.
The initial federal petition raises three claims. A tendered amended petition expands on one of those claims, and adds an ineffective assistance of counsel claim for failure to investigate and call additional witness who would have supported the theory of self-defense. In a separate "motion" to amend, Petitioner adds another aspect to his ineffectiveness claim, expands on other claims, and requests discovery and an evidentiary hearing. The Court took his requests to amend under advisement pending receipt of the Record Proper and Respondents' Answer. See Docs. 1,13-18. Respondents assert that certain claims are unexhausted and/or procedurally defaulted because Petitioner did not file a timely petitioner for certiorari with the New Mexico Supreme Court on either occasion when trial judge denied state habeas relief. See Doc. 16 at 11.
Rather than address any "futility" arguments, the Court will permit amendment and also consider the claims sought to be added. Some of Petitioner's federal claims are partially exhausted, others have never been presented to the New Mexico state courts, some are procedurally defaulted (though not for the reasons asserted by Respondents), and some are not generally cognizable as a basis for habeas relief. None of warrant habeas relief on the merits.
Three AEDPA provisions mainly govern the standard for federal habeas review. In general, for cognizable federal claims, if a state court denies a claim on the merits, then habeas relief cannot be granted unless the state decision was either "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," 28 U.S.C. § 2254(d)(1), or "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding," id. § 2254(d)(2). Factual determinations made by a state court are presumed to be correct unless Petitioner can rebut them by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1).
When a state court does not resolve the claim "on the merits and [it] is not otherwise procedurally barred, [the federal habeas court's] standard of review is more searching . . . because § 2254(d)'s deferential standards of review do not apply in such circumstances." Alverson, 595 F.3d at 1146. This Court will review such claims de novo,1 under the traditionalhabeas comity considerations that predate AEDPA and require due deference to state court decisions and criminal convictions. See e.g., Harrington v. Richter, ___ U.S. ___, ___, 131 S. Ct. 770, 786 (2011) () (quoting Justice Stevens' concurrence in Jackson v. Virginia, 443 U.S. 307, 332, n. 5 (1979)).2
If it is easier to dispose of an unexhausted or procedurally-defaulted claim on the merits, then this Court may do so. See Sandoval v. Ulibarri, 548 F.3d 902, 915 (10th Cir. 2008) (); Moore v. Schoeman, 288 F.3d 1231, 1235 (10th Cir. 2002) () (internal quotations and citations omitted). That is the course I recommend.
To establish ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984), Petitioner must establish two things - that counsel's conduct was constitutionally deficient and that, but for the conduct, the result of the proceeding would have been different. E.g., Harrington, ___ U.S. at ___, 131 S. Ct. at 787; Burghuis v. Thomkins, ___ U.S. ___, ___, 130 S. Ct. 2250, 2264 (2010); Strickland, 466 U.S. at 687. Failure to make either showing defeats the claim. E.g., Smith v. Robbins, 528 U.S. 259, 286, n.14 (2000); Strickland, 466 U.S. at 687. The Strickland standards set a "high bar" for petitioners to surmount, and the habeas court's review, "[e]ven if de novo . . . is a most deferential one." Harrington, 131 S. Ct. at 788.
"To establish deficient performance, a person challenging a conviction must show that counsel's representation fell below an objective standard of reasonableness." Id. 787 (internal quotations and citations omitted). That conduct must amount to "errors so serious that counsel was not functioning as the counsel guaranteed by the Sixth Amendment. Id. (same). The question is not whether counsel's conduct "deviated from best practices or most commoncustom," but whether "an attorney's representation amounted to incompetence under prevailing professional norms." Id. at 788 (same). In considering the first Strickland prong, this Court must not succumb to the temptation to "second-guess counsel's assistance after conviction or adverse sentence." Id. (same).
To establish prejudice, Petitioner must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," and a "reasonable probability" means "a probability sufficient to undermine confidence in the outcome." Id. at 787 (same). "It is not enough to show that the errors had some conceivable effect on the outcome of the proceeding." Id. (same). Instead, "[c]ounsel's errors must be "so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. at 787-88 (same).
The direct appeal concluded on June 2, 2010, when the New Mexico Supreme Court denied certiorari. See Record Proper at 372; Doc. 16-2 at 29. On August 11, 2010, the Clerk of this Court filed the federal petition. See Doc. 1 at 1. The next day, the state clerk filed Petitioner's first state habeas petition. See Record Proper at 382-401.3 With dual actions for habeas relief pending, when Respondents filed their initial Answer as ordered by this Court, they requested an extension to answer until after the state proceedings concluded. This Court thus stayed the federal action. See Docs. 6, 8, 9.
The claims that Petitioner raised and defaulted in the state courts, and now seeks to raisein the federal action, 4 are examples of what he characterizes as trial counsel's ineffectiveness due to "perfunctory representation." See Record Proper at 388. A friend of the victim, Ernest Benjamin, testified the victim was known to carry a gun and had it the day of the shooting. See Trial Transcript 1/29/09 at 91. The victim's girlfriend, Linda Toledo, testified the victim was only carrying a cell phone and a money clip, but no gun or knife, and reluctantly admitted she removed drugs from the victim's body after he had been shot. See Trial Transcript 1/27/09 at 52-56, 73, 77-78.
Petitioner faults trial counsel for...
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