Johnson v. Lumpkin

• Decision Date: 30 September 2022
• Docket Number: Civil Action 4:21-cv-01028
• Parties: ANTHONY DEON JOHNSON, (TDCJ-CID #2116179) Petitioner, v. BOBBY LUMPKIN, Respondent.
• Court: U.S. District Court — Southern District of Texas

ANTHONY DEON JOHNSON, (TDCJ-CID #2116179) Petitioner, v. BOBBY LUMPKIN, Respondent.

Civil Action No. 4:21-cv-01028

United States District Court, S.D. Texas, Houston Division

September 30, 2022

CHARLES ESKRIDGE JUDGE

MEMORANDUM AND OPINION ON DISMISSAL

Hon Charles Eskridge United States District Judge

The motion for summary judgment by Respondent Bobby Lumpkin is granted. Dkt 11.

The petition for a writ of habeas corpus brought by Anthony Deon Johnson is dismissed with prejudice. Dkt 1.

1. Background

A jury found Johnson guilty of possession of a controlled substance with five prior felonies alleged for enhancement of punishment in January 2017 in Cause Number 15-07-07053, before the 9th Judicial District Court of Montgomery County, Texas. Dkt 12-32 at 7. The state summarized trial testimony in its brief on appeal as follows:

Officer Dawn Leggett of the Conroe Police Department sought to execute an active warrant for the appellant's arrest (3 R.R. 101). Leggett noticed the appellant's vehicle parked outside of a house, so she called for backup before knocking on the front door (3 R.R. 102-03, 106). The appellant answered the door and quickly retreated inside the house (3 R.R. 106-08). Leggett pursued the appellant into the house while two other CPD officers, Raymond Adams and “rookie” Officer Salas, followed (3 R.R. 30, 109).

As Leggett commanded the appellant to stop, he continued to flee inside the house, and Leggett could see a pill bottle and toilet paper in the appellant's hand (3 R.R. 109). The appellant threw down the pill bottle and toilet paper before Leggett managed to apprehend him in the kitchen (3 R.R. 110). Adams picked up the bottle, opened it, and saw what he knew from his training and experience to be crack cocaine (3 R.R. 42). Adams placed the bottle on the kitchen counter as he attempted to secure the scene (3 R.R. 42, 116-17).

Several other individuals were in the adjacent room, so the officers waited for other officers to arrive before performing a protective sweep of the house (3 R.R. 46). As they waited, Adams heard a loud crash that sounded like a breaking window, so Adams ran outside and pursued an individual who was fleeing the scene (3 R.R. 50-52). During this commotion, Leggett moved the appellant outside for safety purposes (3 R.R. 116-17). When the scene was secure and she came back inside, the pill bottle was gone, but officers found the same bottle still full of crack cocaine and displaying the same features in the room adjacent to the kitchen, where the other individuals had been (3 R.R. 117-18).

Subsequent analysis confirmed that the substance in the pill bottle was cocaine and weighed 23.67 grams (3 R.R. 225).

Dkt 12-5 at 7-8.

Johnson also pleaded “true” to prior convictions of (i) possession with intent to deliver/manufacture a controlled substance, (ii) possession of controlled substance, (iii) delivery of controlled substance, (iv) aggravated assault with a deadly weapon, and (v) possession of controlled substance. Dkt 12-32 at 5-6. The jury sentenced him to forty-five years in prison. Dkt 12-32 at 7.

The Ninth Court of Appeals affirmed his conviction in April 2018. Johnson v State, No. 09-17-00058-CR, 2018 WL 1631643, *3 (Tex App Beaumont, pet refd).

The Texas Court of Criminal Appeals granted Johnson's application to file an out-of-time petition for discretionary review. Dkt 12-23 at 2. That court refused Johnson's petition for discretionary review in July 2019. In re Johnson, 2019 Tex Crim App Lexis 679 (Tex Crim App July 3, 2019).

Johnson then filed his first state application for a writ of habeas corpus on March 26, 2019. Dkt 12-28 at 20. The Texas Court of Criminal Appeals dismissed it because it was filed prior to his conviction becoming final due to his out-of-time petition for discretionary review being granted in May 2019. Dkt 12-25 at 1. Johnson filed his second state application in May 2020. Dkt 12-32 at 39. The Texas Court of Criminal Appeals denied it without written order on the findings of the trial court without a hearing and on the court's own independent review of the record on March 10, 2021. Dkt 12-29 at 1.

Johnson filed the instant federal petition for a writ of habeas corpus in March 2021. Dkt 1. He contends that his conviction is void for the following reasons:

1) His due process rights were violated by police tampering with and fabricating evidence by failing to secure the crime scene;

2) His Fourteenth Amendment rights were violated by an unreasonable search and seizure, and by the police arresting him without probable cause;

3) His trial counsel was ineffective for failing to hire a forensic expert to assist with his defense;

4) His trial counsel was ineffective for failing to properly question a juror during voir dire;

5) The prosecutor gave false and misleading impressions to the jury during opening and closing arguments;

6) His trial counsel was ineffective for failing to object to the prosecutor's misleading statements during opening and closing arguments;

7) His trial counsel was ineffective for failing to file a motion to suppress the pill bottle, which was not properly secured or preserved; and

8) His trial counsel was ineffective for failing to file a motion to suppress the cocaine, which was obtained through illegal search and seizure.

Dkt 1 at 6-14; Dkt 1-2 at 1-11.

2. Legal standard

Respondent moves for summary judgment, arguing that first, second, and fifth claims above are procedurally barred and that the remaining claims by Johnson lack merit and must be dismissed. Dkt 11 at 6-8. The trial transcript and other state-court records were attached to that motion. Dkt 12.

a. AEDPA

Johnson proceeds here pro se. A pro se petition is construed liberally and isn't held to the same stringent and rigorous standards as pleadings filed by lawyers. See Martin v Maxey, 98 F.3d 844, 847 n 4 (5th Cir 1996); Bledsue v Johnson, 188 F.3d 250, 255 (5th Cir 1999).

The Antiterrorism and Effective Death Penalty Act, 28 USC § 2241 et seq, governs this federal petition for habeas corpus. See Woodford v Garceau, 538 U.S. 202, 205-08 (2003); Lindh v Murphy, 521 U.S. 320, 335-36 (1997). This has consequences for the standard of review as to disputed questions of both law and fact.

As to disputed questions of law, AEDPA bars federal habeas corpus relief based upon claims that were adjudicated on the merits by state courts unless the decision of the state court “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 USC § 2254(d); see also Early v Packer, 537 U.S. 3, 7-8 (2002); Cobb v Thaler, 682 F.3d 364, 372-73 (5th Cir 2012). The Fifth Circuit holds that a statecourt decision is contrary to clearly established federal law “if it reaches a legal conclusion in direct conflict with a prior decision of the Supreme Court or if it reaches a different conclusion than the Supreme Court based on materially indistinguishable facts.” Gray v Epps, 616 F.3d 436, 439 (5th Cir 2010), citing Williams v Taylor, 529 U.S. 362, 404-08 (2002). And the Fifth Circuit holds that an unreasonable application of federal law means that the decision is “unreasonable, not merely wrong; even clear error will not suffice.” Escamilla v Stephens, 602 F Appx 939, 941 (5th Cir 2015, per curiam), quoting White v Woodall, 572 U.S. 415, 419 (2014). This is a high bar. To satisfy it, a petitioner must “show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Woods v Donald, 575 U.S. 312, 316 (2015), quoting Harrington v Richter, 562 U.S. 86, 103 (2011).

As to disputed questions of fact, AEDPA precludes federal relief unless the adjudication by the state court of the merits was based on an “unreasonable determination of the facts in light of the evidence presented in the state court proceeding.” 28 USC § 2254(d)(2); see also Martinez v Caldwell, 644 F.3d 238, 241-42 (5th Cir 2011). A state court's factual determinations are “presumed to be correct” unless the petitioner rebuts those findings with “clear and convincing evidence.” 28 USC § 2254(e)(1). This presumption of correctness extends not only to express factual findings, but also to implicit or “unarticulated findings which are necessary to the state court's conclusion of mixed law and fact.” Murphy v Davis, 901 F.3d 578, 597 (5th Cir 2018), quoting Valdez v Cockrell, 274 F.3d 941, 948 n 11 (5th Cir 2001).

A federal court reviewing a petition for writ of habeas corpus may only consider the factual record that was before the state court when determining the reasonableness of that court's findings and conclusions. Cullen v Pinholster, 563 U.S. 170, 180-81 (2011). And the Supreme Court instructs that it “may not characterize these state-court factual determinations as unreasonable ‘merely because [it] would have reached a different conclusion in the first instance.'” Brumfield v Cain, 576 U.S. 305, 313-14 (2015), quoting Wood v Allen, 558 U.S. 290, 301 (2010). To the contrary, § 2254(d)(2) requires the federal court to “accord the state trial court substantial deference.” Brumfield, 576 U.S. at 314.

A petitioner seeking a writ of habeas corpus must also demonstrate injury of a certain character. To warrant relief based on state-court error, a petitioner must show the alleged error had “substantial and injurious effect.” Brecht v Abrahamson, 507 U.S. 619 (1993); for example, see Hughes v Quarterman, 530 F.3d 336, 345...