Johnson v. Lumpkin
| Decision Date | 13 January 2022 |
| Docket Number | Civil Action 3:19-CV-2310-E |
| Parties | MATTHEW JOHNSON, Petitioner, v. BOBBY LUMPKIN, Director, Respondent. |
| Court | U.S. District Court — Northern District of Texas |
The matters before the Court are (1) Johnson's motion, filed May 4, 2021 (ECF no. 30), to stay and hold this case in abeyance or, alternatively, for an extension of time within which to reply to Respondent's Answer and (2) Respondent's response in opposition to Johnson's stay motion, filed May 6, 2021 (ECF no. 31). For the reasons discussed below, Johnson's request for a stay will be denied but his request for an extension of time within which to file his reply brief will be granted.
The facts of Johnson's capital offense are not in genuine dispute. They were recorded on a store surveillance camera. In May 2012, Johnson entered a convenience store and poured a bottle of what was later determined to be lighter fluid over the head of 76-year-old store clerk Nancy Harris. Johnson then demanded money. As Harris attempted to open the cash register, Johnson took two cigarette lighters, two packages of cigarettes, and a ring from Harris' finger. Once Harris opened the cash register, Johnson took the money and set Harris aflame. As Harris frantically attempted to extinguish herself and her clothing, according to the Texas Court of Criminal Appeals, the video showed Johnson “calmly” select candy from a store display and then walk out of the store. Ex parte Johnson, No. WR-86, 571-01 2019 WL 4317046, at *1 (Tex. Crim. App. Sept. 11, 2019). Police officers arrived at the convenience store very quickly and used a fire extinguisher to put out the flaming Harris who died five days later from her burn injuries. A little more than an hour after setting Harris afire, Johnson was arrested shirtless carrying two new cigarette lighters, two packages of cigarettes, and Harris' ring. Police noted his unusually calm demeanor during his transport to the police station, corroborated by a video.
At the punishment phase of trial, the prosecution presented extensive evidence showing Johnson's prior criminal history and detailing the painful physical decline and death Harris suffered in the days after she was set on fire. The defense presented an extensive case in mitigation, including testimony from (1) a pair of experts about Johnson's drug addiction, (2) Johnson's family and friends concerning his difficult childhood, positive character traits, and difficulties with drugs, and (3) Johnson himself, in which he expressed his remorse for his offense, swore he was high on drugs at the time of the offense, and declared that he had not intended to set Harris on fire.
The jury found Johnson guilty of capital murder and answered the Texas capital sentencing special issues in a manner requiring the trial court to impose a sentence of death. Johnson appealed, asserting 65 points of error. The Texas Court of Criminal Appeals affirmed his conviction and sentence. Johnson v. State, No. AP-77, 030, 2015 WL 7354609 (Tex. Crim. App. Nov. 18, 2015), cert. denied, 136 S.Ct. 2509 (2016). The Texas Court of Criminal Appeals subsequently denied Johnson's application for state habeas corpus relief. Ex parte Johnson, No. WR-86 571-01, 2019 WL 4317046 (Tex. Crim. App. Sept. 11, 2019).
On September 11, 2020, Johnson filed his original federal habeas corpus petition, asserting five groups of claims for relief, including claims that (1) his trial counsel rendered ineffective assistance by failing to adequately investigate Johnson's background and present available mitigating evidence, (2) his constitutional rights were violated by virtue of the lack of definitions of key terms in the Texas capital sentencing special issues in his punishment phase jury charge, and (3) the fact the jury's prediction of future dangerousness (in its affirmative answer to the first capital sentencing special issue) has, in hindsight, proven to be factually inaccurate (ECF no. 21, at 8-82). Respondent filed his Answer on April 9, 2021, arguing in part that (1) the state habeas court rejected Johnson's ineffective assistance claims on the merits after full evidentiary development, (2) on direct appeal, the Texas Court of Criminal Appeals denied Johnson's challenge to the efficacy of his punishment phase jury charge and the Texas capital sentence special issues incorporated therein, and (3) Johnson may not re-litigate the validity of the jury's affirmative answer to the Texas capital sentencing statute's future dangerousness special issue using new evidence obtained after trial (ECF no. 29, 34-76).
On May 4, 2021, Johnson filed a motion (ECF no. 30) seeking a stay and abeyance of this cause to permit him to interview (1) unidentified prison personnel who have personal knowledge of Johnson's behavior during his current incarceration on death row and (2) members of Johnson's jury about their understanding of the Texas capital sentencing special issues and their possible reactions to new and additional mitigating evidence that was not presented during Johnson's trial (which Johnson argues is relevant to the prejudice prong of Strickland analysis). Johnson argues that practical limitations on travel and interpersonal contact have during the current COVID-19 pandemic have made it impossible for his federal habeas team to procure interviews with unidentified individuals who fall within the two categories indicated above.
A stay and abeyance to permit exhaustion of state court remedies on unexhausted claims for relief is appropriate in the context of a pending federal habeas corpus proceeding only when a district court determines that (1) there is good cause for a petitioner's failure to exhaust his claims in state court; (2) the unexhausted claims are not plainly meritless; and (3) the petitioner has not engaged in abusive litigation tactics or intentional delay. Rhines v. Weber, 544 U.S. 269, 277-78 (2005); Haynes v. Quarterman, 526 F.3d 189, 196 (5th Cir. 2008).
The first and last of these three factors do not weigh in Johnson's favor. Johnson was afforded an evidentiary hearing during the course of his state habeas corpus proceeding. The Supreme Court and Fifth Circuit have both made clear that, under the AEDPA, the proper place for development of the factual bases for federal habeas claims is the state courts. See Harrington v. Richter, 562 U.S. 86, 103 (2011) (); Hernandez v. Johnson, 108 F.3d 554, 558 n.4 (5th Cir. 1997) ().
Johnson does not allege any specific facts showing that he was unable, despite the exercise of due diligence, to fully develop and present the factual bases for his federal habeas claims during the course of his state habeas corpus proceeding. Specifically, Johnson identifies nothing which precluded him from subpoenaing to testify at his state habeas evidentiary hearing either (1) his state petit jurors or (2) any employees of the Texas Department of Criminal Justice (“TDCJ”) who possessed personal knowledge of Johnson's behavior on death row. While Johnson refers to the effects of the current COVID-19 pandemic, his state habeas corpus proceeding culminated in the Texas Court of Criminal Appeals' denying his state habeas corpus application in September 2019, long before that contagion reached the shores of this nation. The current pandemic did not prevent Johnson from interviewing his jurors or relevant TDCJ personnel prior to that time.
Johnson's request for a stay to permit interviews of his petit jurors (to ascertain how they might have reacted had his trial counsel presented a more extensive case in mitigation) is a small horse soon curried. As Respondent correctly points out, affidavits of the type Johnson proposes to obtain from his jurors, i.e., those addressing the jurors' subjective understanding of the jury charge and speculative opinions as to the efficacy of additional mitigating evidence on their punishment phase verdict, are not admissible in a federal habeas corpus proceeding. See Warger v. Shauers, 574 U.S. 40, 44-53 (2014) (); Tanner v. United States, 483 U.S. 107, 120-25 (1987) (); Young v. Davis, 835 F.3d 520, 528-29 (5th Cir. 2016) (); Summers v. Dretke, 431 F.3d 861, 873 (5th Cir. 2005) ().
Likewise the Fifth Circuit has held that...
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