Johnson v. Minn. Dep't of Corr.

• Court: U.S. District Court — District of Minnesota
• Writing for the Court: The Honorable Leo I. Brisbois United States Magistrate Judge
• Decision Date: 14 June 2017
• Docket Number: Court File No. 16-cv-3331 (JRT/LIB)
• Citation: Johnson v. Minn. Dep't of Corrs., Court File No. 16-cv-3331 (JRT/LIB) (D. Minn. Jun 14, 2017)
• Parties: Andre Thomas Johnson, Petitioner, v. Minnesota Department of Corrections. Defendant.

Andre Thomas Johnson, Petitioner, v. Minnesota Department of Corrections. Defendant.

Court File No. 16-cv-3331 (JRT/LIB)

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

June 14, 2017

REPORT AND RECOMMENDATION

This matter came before the undersigned United States Magistrate Judge pursuant to a referral made in accordance with the provisions of 28 U.S.C. § 636(b) and Local Rule 72.1, and upon Petitioner Andre Thomas Johnson's Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, [Docket No. 1].

For the reasons set forth below, the Court recommends that the Petition for Writ of Habeas Corpus, [Docket No. 1], be DENIED, and this action be DISMISSED with prejudice.

I. BACKGROUND AND STATEMENT OF FACTS

The Minnesota Court of Appeals has set forth the following facts underlying the crimes for which Petitioner Andre Thomas Johnson was convicted:

On the night of July 6, 2012, R.B., a heroin dealer, and his acquaintance D.V. were leaving R.B.'s Saint Paul home when a man with a rifle approached them and ordered them back inside the house. Once inside, the man pointed the gun at T.C., who was inside the house. T.C. ran out the front door. The man demanded drugs and money from R.B. R.B. gave the man some money from his pocket and some heroin. When R.B. failed to produce more money and drugs, the man shot R.B. twice, shot D.V. once in his leg, and left the home. R.B. died from his wounds.

During the investigation of R.B.'s murder, Saint Paul police identified [Thomas] as a suspect. Saint Paul Police Sergeant Sheila Lambie applied for a warrant to search Johnson's residence in Ironton, Minnesota. Sergeant Lambie drafted the search-warrant application, the supporting affidavit, and the proposed search warrant. The supporting affidavit provided the following facts in support of probable cause. Officers learned that R.B. had been selling narcotics and that one of his associates was T.H., who lived next door. An officer interviewed T.H., and T.H. provided his home and cell phone numbers. Officers obtained T.H.'s home phone records and learned that just prior to and shortly after the murder, there were calls between T.H.'s home phone and a number listed to a person named J.J. Sergeant Lambie learned that Johnson is T.H.'s nephew or cousin, and that J.J. is Johnson's mother. Johnson was convicted of aggravated assault in 1997 and had just been released from prison. Johnson's cell phone records revealed that Johnson was in Saint Paul continuously from July 6 until July 7. Johnson's parole officer told officers that Johnson was allowed to travel to the Twin Cities but he was not allowed to spend the night.

When Sergeant Lambie interviewed T.H., he denied that he knew Johnson and that he had a relative by that name. But T.H.'s wife told Sergeant Lambie that Johnson is the son of T.H.'s cousin, J.J., and that Johnson and J.J. were at her house with T.H. on the day of the murder. T.H.'s wife told the police that T.H. was in the front yard with the cordless house phone right after the murder occurred. A confidential reliable informant (CRI) told the police that T.H. stated, "[I]t was supposed to go down that way. . . ." The CRI told the police that T.H. said the murder was supposed to be a robbery.

The surviving victim, D.V., and another witness to the murder described the suspect as a black male who was wearing a wig, which was "stringy and fake looking." The suspect wore a skull cap over the wig, and the hair hung out of the bottom and sides of the skull cap. The suspect also work a black jacket or hoodie with red stripes down the arms.

The search-warrant application requested to search Johnson's address, including "any garage or shed in relation to this address," for firearms, ammunition, a wig or fake hair, a skull cap, and a black jacket or hoodie with red stripes down the arms. However, when drafting the search warrant, Sergeant Lambie mistakenly inserted the list of items to be seized in the spot designated for identification of the place to be searched. As a result, the search warrant did not describe the place to be searched. Sergeant Lambie presented the search-warrant application, the supporting affidavit, and the search warrant, which were paper-clipped together, to a district court judge, who read and signed the supporting affidavit and the search warrant, noting the date and time of his signature on both documents.

After obtaining the search warrant, Sergeant Lambie briefed the tactical team that would eventually execute the warrant. She provided the team with the warrant and the supporting affidavit, she showed the team photographs of the property's layout, and she discussed with the team the buildings on the property. The tactical team found a wig and shell casings during the ensuing search of Johnson's property. A ballistics analyst concluded that a casing found on Johnson's property was fired from the same gun as casings found at the crime scene.

[The] State of Minnesota charged Johnson with two counts of second-degree murder for R.B.'s death, one-count of second-degree assault against D.V., and one count of second-degree assault against T.C. The case was tried to a jury, and the jury found Johnson guilty of all charges. The district court sentenced Johnson to serve 450 months in prison for one count of second-degree murder. Next, the district court sentenced Johnson to serve 60 months in prison for the assault against D.V., consecutively to the 450-month murder sentence. Lastly, the district court sentenced Johnson to serve 60 months for the assault against T.C., concurrently with the other assault sentence.

Johnson appealed, and [the Minnesota State Court of Appeals] granted his request to stay the appeal and remand for postconviction proceedings. Johnson petitioned for postconviction relief, arguing that his trial counsel was ineffective because he failed to challenge the search warrant for lack of probable cause and lack of specificity regarding the place to be searched. The postconviction court held a hearing on the petition and heard testimony from Johnson's trial counsel and from Sergeant Lambie. The postconviction court denied Johnson's petition, concluding that the search warrant was based on sufficient probable cause, its failure to describe the place to be searched was cured by the attached supporting affidavit, and that Johnson's trial counsel was not ineffective.

State v. Johnson, No. A13-2125, 2015 WL 8548029, *1-2 (Minn. Ct. App. Dec. 14, 2015).

After the postconviction proceedings in Minnesota state district court concluded, the Minnesota Court of Appeals lifted the stay on Johnson's appeal and Johnson appealed the state district court's findings regarding the effectiveness of his trial counsel. Id. at *2-3. The Minnesota Court of Appeals affirmed the state district court finding that the search warrant affidavit provided a substantial basis for concluding that there was probable cause to search Johnson's property, and therefore, Johnson's trial counsel did not provide unconstitutionally ineffective assistance of counsel by failing to challenge the sufficiency of the affidavit submitted in support of the application for a search warrant. Id. at *5. Moreover, the Minnesota Court of Appeals found that under the circumstances of this case, the clerical error of omitting the address of Johnson's property from the search warrant did not create a reasonable probability that another property might be mistakenly searched, and therefore, the execution of the search warrant was not unconstitutional. Id. at *6-7. Thus, the Minnesota Court of Appeals alsoaffirmed the state district court's finding that Johnson's trial counsel did not provide unconstitutionally ineffective assistance of counsel due to counsel's failure to challenge the search warrant for lack of specificity. Id. at *7.

Johnson also argued to the Minnesota Court of Appeals that "his 'sentences must be reversed because the district court sentenced him on his second-degree murder conviction before sentencing him on his second-degree assault convictions even though the latter offenses were completed before the murder.'" Id. The Minnesota Court of Appeals agreed, and it remanded the case to the state district court for resentencing of the offenses in the order in which they occurred. Id. at *8. Because it ordered remand for resentencing, the Minnesota Court of Appeals declined to address Johnson's remaining challenge to his sentence, which was based on his assertion that "'the state failed to introduce any evidence at [his] trial that would allow the jury to find beyond a reasonable doubt that [he] had a prior qualifying offense involving a firearm to trigger the mandatory-minimum sentencing requirement in Minn. Stat. § 609.11, subd. 5(a).'" Id.

On or about January 13, 2016, Johnson filed with the Minnesota Supreme Court a petition for review of the decision of the Minnesota Court of Appeals. (Resp. Exh. 13, [Docket No. 7-2], 92-118). Johnson sought review of the Minnesota Court of Appeals' ruling regarding whether "Johnson's trial attorney was ineffective for failing to challenge the November 2012 search warrant for its lack of specificity in the place to be searched and its lack of probable cause." (Id. at 93).

On March 15, 2016, the Minnesota Supreme Court issued an order denying Johnson's petition for review. (Resp. Exh. 15, [Docket No. 7-2], 115). Therefore, on May 16, 2016, the Clerk of the Appellate Courts entered judgment affirming the district court in part, reversing in part, and remanding for resentencing. (Resp. Exh. 16, [Docket No. 7-2], 117).

On October 3, 2016, Johnson, at this point a Minnesota state correctional facility inmate, filed in this Court a Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody. ([Docket No. 1]). In his Petition, Johnson asserts three grounds for granting the Writ: (1) ineffective assistance of trial counsel for failure to challenge the search warrant for insufficient...