Johnson v. Johnson, Civil Action No. 3:10cv502

• Decision Date: 12 July 2011
• Docket Number: Civil Action No. 3:10cv502
• Court: U.S. District Court — Eastern District of Virginia
• Parties: TYRELL L. JOHNSON, Petitioner, v. GENE M. JOHNSON, Respondent.

TYRELL L. JOHNSON, Petitioner,

v.GENE M. JOHNSON, Respondent.

Civil Action No. 3:10cv502

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division

Dated: July 12, 2011

MEMORANDUM OPINION

Tyrell L. Johnson, a Virginia inmate proceeding pro se and in forma pauperis, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent filed a motion to dismiss (Docket No. 13) and a Rule 5 Answer (Docket No. 14), providing Johnson with appropriate Roseboro¹ notice (Docket No. 16). Johnson responded. (Docket No. 18.) The matter is ripe for disposition.

I. PROCEDURAL HISTORY

In March 2007, a jury convicted Johnson in the Circuit Court of the City of Norfolk ("Circuit Court") of first degree murder and use of a firearm in commission of a felony. The Circuit Court sentenced Johnson to eighty years in prison. Johnson appealed his conviction.

A. Johnson's State Appeals

In his petition for appeal to the Court of Appeals of Virginia, Johnson raised three grounds for relief: (1) the Circuit Court denied Johnson funds to hire a ballistics expert; (2) the Circuit Court erred in permitting a witness to testify regarding the victim's statements; and (3) insufficient evidence was presented regarding Johnson's specific intent to kill. Petition forAppeal, Johnson v. Commonwealth, No. 0838-07-1 (Va. Ct. App. filed Sept. 26, 2007); (Docket No. 17 Ex. 2.) A single Court of Appeals of Virginia judge denied Johnson's petition for appeal. Johnson, No. 0838-07-1 (Va. Ct. App. Dec. 28, 2007); (Docket No. 17 Ex. 3.) Subsequently, a three-judge panel from the Court of Appeals of Virginia denied the petition. Johnson, No. 0838-07-1 (Va. Ct. App. Mar. 17, 2008); (Docket No. 17 Ex. 4.) The Supreme Court of Virginia summarily refused Johnson's petition for appeal. Johnson v. Commonwealth, No. 080572 (Va. July 9, 2008); (Docket No. 17 Ex. 5.)

B. Johnson's State Habeas Proceedings

Johnson then filed a petition for a writ of habeas corpus in the Circuit Court. Johnson v. Johnson, No. CL09004366-00 (Va. Cir. Ct. filed July 8, 2009). Johnson raised seven claims for relief:

State Claim One "Petitioner was denied a fair trial when the Commonwealth knowingly used perjured or false testimony." Johnson, No. CL09004366-00, at 2 (Va. Cir. Ct. Sept. 25, 2009); (Docket No. 17 Ex. 7 ("State Habeas Op.").)

State Claim Two "Appellate counsel was ineffective for failing to have a sufficient record for review of all potential assignments of error." (State Habeas Op. 2.)

State Claim Three "Trial counsel was ineffective for refusing to allow petitioner to testify in his own behalf at trial." (State Habeas Op. 3.)

State Claim Four "Trial counsel was ineffective for failing to request an instruction to the jury on presumption of innocence." (State Habeas Op. 3.)

State Claim Five "Petitioner was deprived of his Due Process Rights under the Fourteenth Amendmentf² ] when the Commonwealth failed to disclose evidence favorable to the petitioner." (State Habeas Op. 3.)

State Claim Six "Trial counsel was ineffective for failing to request the trial court take appropriate action upon discovery that the Commonwealth had withheld evidence favorable to the petitioner." (State Habeas Op. 3.)

State Claim Seven "Trial counsel was ineffective for failing to object to or oppose a defective indictment and failed to object to the unconstitutional amendment of the defective indictment." (State Habeas Op. 3.)

The Circuit Court dismissed State Claims One and Five pursuant to the rule announced in Slayton v. Parrigan, 205 S.E.2d 680, 682 (Va. 1974), because they could have been raised, but were not, at trial and on direct appeal.³ (State Habeas Op. 3.) The Circuit Court dismissed State Claims Two, Three, Four, Six, and Seven because Johnson did not satisfy either prong of the test for ineffective assistance of counsel in Strickland v. Washington⁴ (State Habeas Op. 4-10.)

Johnson appealed to the Supreme Court of Virginia. Petition for Appeal, Johnson v. Johnson, No. 092565 (Va. filed Dec. 17, 2009); (Docket No. 17 Ex. 8.) The Supreme Court of Virginia summarily refused his petition for appeal. Johnson, No. 092565 (Va. July 2, 2010); (Docket No. 17 Ex. 9.)

C. Johnson's 28 U.S.C. § 2254 Petition

On July 8, 2010,⁵ Johnson filed a petition under 28 U.S.C. § 2254 for a writ of habeas corpus. In his petition, Johnson raises seven claims for relief. His claims for relief here are identical to those raised in the state habeas proceedings:

Claim One Petitioner was denied a fair trial when the Commonwealth knowingly used perjured or false testimony.

Claim Two Appellate counsel was ineffective for failing to have a sufficient record for review of all potential assignments of error.

Claim Three Trial counsel was ineffective for refusing to allow petitioner to testify in his own behalf at trial.

Claim Four Trial counsel was ineffective for failing to request an instruction to the jury on presumption of innocence.

Claim Five Petitioner was deprived of his Due Process Rights under the Fourteenth Amendment when the Commonwealth failed to disclose evidence favorable to the petitioner.⁶

Claim Six Trial counsel was ineffective for failing to request the trial court take appropriate action upon discovery that the Commonwealth had withheld evidence favorable to the petitioner.

Claim Seven Trial counsel was ineffective for failing to object to or oppose a defective indictment and failed to object to the unconstitutional amendment of the defective indictment.⁷

Respondent has moved to dismiss Claims One and Five on the ground that they are procedurally defaulted because the Supreme Court of Virginia dismissed these claims pursuant to Slayton, an adequate and independent state ground. Respondent has moved to dismiss the remaining claims on the ground that the Supreme Court of Virginia dismissed the claims on the merits pursuant to Strickland and such dismissal was not contrary to nor an reasonable application of law. See 28 U.S.C. § 2254(d).

II. ANALYSIS

A. Exhaustion and Procedural Default

State exhaustion "'is rooted in considerations of federal-state comity,'" and in Congressional determination via federal habeas laws "that exhaustion of adequate state remedies will 'best serve the policies of federalism.'" Slavek v. Hinkle, 359 F. Supp. 2d 473,479 (E.D. Va. 2005) (quoting Preiser v. Rodriguez, 411 U.S. 475, 491-92 & n.10 (1973)). The purpose of the exhaustion is "to give the State an initial opportunity to pass upon and correct alleged violations of its prisoners' federal rights." Picard v. Connor, 404 U.S. 270, 275 (1971) (internal quotation marks omitted). Exhaustion has two aspects. First, a petitioner must utilize "all available state remedies before he can apply for federal habeas relief." Breard v. Pruett, 134 F.3d 615, 619 (4th Cir. 1998) (citing Matthews v. Evatt, 105 F.3d 907, 910-11 (4th Cir. 1997)). As to whether a petitioner has used all available state remedies, the statute notes that a habeas petitioner "shall not be deemed to have exhausted the remedies available in the courts of theState . . . if he has the right under the law of the State to raise, by any available procedure, the question presented." 28 U.S.C. § 2254(c).

The second aspect of exhaustion requires a petitioner to have offered the state courts an adequate opportunity to address the constitutional claims advanced on federal habeas. "To provide the State with the necessary 'opportunity,' the prisoner must 'fairly present' his claim in each appropriate state court (including a state supreme court with powers of discretionary review), thereby alerting that court to the federal nature of the claim." Baldwin v. Reese, 541 U.S. 27, 29 (2004) (quoting Duncan v. Henry, 513 U.S. 364, 365-66 (1995)). Fair presentation demands that '"both the operative facts and the controlling legal principles must be presented to the state court.'" Baker v. Corcoran, 220 F.3d 276, 289 (4th Cir. 2000) (quoting Matthews, 105 F.3d at 911). Thus, "the presentation to the state court of a state law claim that is similar to a federal claim does not exhaust the federal claim." Id. (citing Duncan, 513 U.S. at 366); see Gray v. Netherland, 99 F.3d 158, 162-64 (4th Cir. 1996) (concluding petitioner had not fairly presented his legal argument to the state courts). "The burden of proving that a claim has been exhausted lies with the petitioner." Matthews, 105 F.3d at 911 (citing Mallory v. Smith, 27 F.3d 991,994 (4th Cir. 1994)).

"A distinct but related limit on the scope of federal habeas review is the doctrine of procedural default." Breard, 134 F.3d at 619. This doctrine provides that "[i]f a state court clearly and expressly bases its dismissal of a habeas petitioner's claim on a state procedural rule, and that procedural rule provides an independent and adequate ground for the dismissal, the habeas petitioner has procedurally defaulted his federal habeas claim." Id. (citing Coleman v. Thompson, 501 U.S. 722, 731-32 (1991)). A federal habeas petitioner also procedurally defaultsclaims when the "petitioner fails to exhaust available state remedies and 'the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred.'" Id. (quoting Coleman, 501 U.S. at 735 n.l).⁸ The burden of pleading and proving that a claim is procedurally defaulted rests with the state. Jones v. Sussex I State Prison, 591 F.3d 707, 716 (4th Cir. 2010) (citing cases). Absent a showing of cause and prejudice or a fundamental miscarriage of justice, this Court cannot review the merits of a defaulted claim. See Harris v. Reed, 489 U.S. 255, 262 (1989).

B. Claims One And Five Are Procedurally Defaulted

Johnson presented Claims One and Five to the Circuit Court in his state petition for a writ of habeas corpus. The Circuit Court determined that these claims were barred from review because they could have been, but were not, raised at trial and on direct appeal. (...