Johnson v. Mitchell

• Decision Date: 04 November 2009
• Docket Number: No. 00-3350.,00-3350.
• Citation: 585 F.3d 923
• Parties: Gary Van JOHNSON, Petitioner-Appellant, v. Betty MITCHELL, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

585 F.3d 923

Gary Van JOHNSON, Petitioner-Appellant, v. Betty MITCHELL, Warden, Respondent-Appellee.

No. 00-3350.

United States Court of Appeals, Sixth Circuit.

Argued: December 6, 2007.

Decided and Filed: November 4, 2009.

ARGUED:

Timothy F. Sweeney, Law Office of Timothy Farrell Sweeney, Cleveland, Ohio, for Appellant. Charles L. Wille, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee.

ON BRIEF:

Timothy F. Sweeney, Law Office of Timothy Farrell Sweeney, Cleveland, Ohio, Michael J. Benza, Law Office of Michael J. Benza, Chagrin Falls, Ohio, for Appellant. Charles L. Wille, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee.

Before: DAUGHTREY, MOORE, and GILMAN, Circuit Judges.

OPINION

MARTHA CRAIG DAUGHTREY, Circuit Judge.

Following his convictions in Ohio state court for aggravated robbery and aggravated murder, with specifications, Gary Van Johnson was sentenced to death. After exhausting his direct appeals, as well as avenues for state collateral relief, Johnson petitioned for habeas relief in federal court under the provisions of 28 U.S.C. § 2254. Denied the relief he desired, the petitioner now appeals to this court and raises numerous claims of constitutional error, including arguments involving alleged (1) insufficiency of the convicting evidence, (2) improper withholding of impeachment evidence by the prosecution, (3) prosecutorial misconduct, (4) failure of the trial judge to declare a mistrial, (5) ineffective assistance of counsel at the guilt phase of the trial and (6) at the penalty phase of the trial, and (7) improper failure of the district judge to recuse himself from the habeas proceedings. Although we find no merit to the other issues raised on appeal for the reasons expressed below, we conclude that Johnson's trial attorney did not provide his client with effective assistance of counsel during the penalty phase of the trial. As a result, we find it necessary to reverse the district court's judgment and remand the case for further proceedings.

I. FACTUAL AND PROCEDURAL BACKGROUND

In addressing the petitioner's conviction in Ohio state court, the Supreme Court of the State of Ohio summarized the relevant facts and the initial procedural history of the case as follows:

The appellant, Gary Johnson, was indicted on May 4, 1983, for aggravated murder and aggravated robbery. The aggravated murder charge included specifications that the appellant was committing or attempting to commit or fleeing immediately after committing or attempting to commit aggravated robbery, and that the defendant had a firearm on or about his person or under his control while committing the offenses charged within the indictment.

The case went to trial for the first time on October 3, 1983. Appellant was convicted of both charges and at the conclusion of the penalty phase the jury recommended the death penalty. The trial court adopted the jury's recommendation and imposed the death sentence. However, the majority of this court held that the appellant was denied his constitutional right to effective assistance of counsel because of defense counsel's failure to investigate appellant's background for the purpose of presenting evidence in mitigation at the penalty phase of the trial, and counsel's failure to object to the inclusion in the indictment of the firearm specification and its submission to the jury at both the guilt and penalty phases of the proceedings. Also, we found that the trial court erred in denying the appellant's request for a continuance, based on newly discovered evidence at the guilt phase of the proceedings. Therefore, appellant's convictions were reversed, his sentence was vacated and the cause was remanded for a new trial. State v. Johnson [(Johnson I), 24 Ohio St.3d 87, 494 N.E.2d 1061 (Ohio 1986)].

The case was retried beginning November 12, 1986, and the following evidence was adduced.

Steven Graster testified that his wife, Eunice Graster (the victim) had been employed as a desk clerk at the Reno Hotel in Cleveland since the end of 1982. The Reno Hotel, where the victim was murdered, was primarily used for prostitution and other sexual liaisons. On Tuesday, April 26, 1983, Eunice was working the 7:00 a.m. to 3:30 p.m. shift as the clerk at the Reno Hotel. There were five couples in the hotel during her shift; however, registration records showed that four couples had checked out, leaving only one of these five couples, Mr. and Mrs. Sid Arnold, in Room 23. Eunice's husband, Steven, testified that he arrived at the hotel with their two children at approximately 9:25 to 9:30 to pick up a W.I.C. coupon book from Eunice. (W.I.C., Women, Infants and Children, is a federally subsidized basic nutrition program.) He had a 10:00 a.m. appointment to take their two children to the W.I.C. clinic at Miles and Broadway to participate in the nutrition program. Apparently, Eunice had the program booklet at work and Steven's purpose in visiting her was to obtain the booklet from his wife. Steven remained at the hotel for approximately ten or fifteen minutes.

While Steven was talking to his wife, he noticed the appellant come into the north doorway to the main entrance of the hotel. In order to allow entry into the hotel, Eunice had to "buzz in" the appellant through a second and a third set of doors. Appellant proceeded to a room used as an employees' lunchroom. Shortly after this, Steven left to keep his 10:00 appointment at the W.I.C. clinic. The records of the W.I.C. clinic show that Steven was on time for his appointment.

Upon arriving at the W.I.C. clinic with his two children, Steven believed he needed his wife's welfare card, so he called the hotel twice but received no answer. He then left the clinic at 10:38 a.m. When Steven got home he phoned the hotel for the third time and reached Ganelle Johnson, the hotel manager, who notified Steven that she did not know where Eunice was. Steven then gathered up his two children and drove back to the Reno Hotel. When he arrived he learned that his wife was dead. Sergeant William Manocchio observed Steven become hysterical and punch a hole in the wall upon finding out about his wife.

Appellant's aunt, Vera Lundy, was a maid at the Reno Hotel. On April 26, her shift began at 10:00 a.m. Upon arriving early, she went to a nearby restaurant for coffee. Lundy testified that a couple of minutes before 10:00 she left the restaurant and headed for the hotel. At the north entrance to the hotel she encountered a couple who told her that they had been trying to get into the hotel for fifteen minutes. Lundy rang the doorbell and pounded on the door, but received no response. She went to the back of the hotel and looked through a window, but observed nothing. When she returned to the front of the hotel she saw that one of the double doors was open and appellant was walking down the front steps. Lundy testified that she noticed that appellant had a brown envelope resembling those used by the hotel for cash receipts. However, during cross-examination, she admitted that she had not remembered, when asked prior to trial, whether appellant had anything in his possession.

According to Lundy, she asked the appellant to go into the hotel with her to find Eunice, and the appellant replied that "he wasn't going back into the hotel, Dee [appellant's father, Robert Johnson, owner of the hotel] wasn't going to blame him for anything that happened in the hotel."

Two Cleveland vice officers, Detectives William Reiber and Edward Kelley, who had been watching the hotel, corroborated Lundy's story by testifying that they saw the appellant converse with Lundy and also noticed a yellow envelope in his possession.

Detective Sergeant John McKibben testified that appellant told him that he had not been on the front porch at all and had no conversation with Lundy. However, later appellant testified that he responded to Lundy's request to come inside by saying, "No, you just told me yesterday Ganelle [appellant's sister and the hotel manager] said not to hang around Eunice's shift. You want me to get in some trouble." John Williams, who was blacktopping the hotel's parking lot that day, overheard the conversation between Lundy and the appellant, and corroborated the appellant's version.

Around 10:00 a.m., Lundy called Ganelle. According to Ganelle, Lundy was nervous, upset, and close to tears. Lundy told Ganelle she could not get into the hotel and could not find Eunice. Ganelle instructed Lundy to go back and ring the doorbell again and she would phone the hotel switchboard. Ganelle then phoned the hotel, hoping to reach Eunice, but received no answer. Meanwhile, Lundy summoned the Cleveland police, and called Ganelle again. Ganelle characterized Lundy as "hysterical" at this point. During the second conversation, according to Ganelle, Lundy said: "I saw Gary [the appellant] coming out of the hotel." On cross-examination, however, Lundy conceded that she had testified in the first trial in 1983 that she had not told Ganelle about seeing appellant coming out of the hotel.

When Ganelle arrived at the hotel, she discovered that the door to the office which was usually locked had been forced open, splintering the door jamb. Upon entering the room, she found that all the receipts she had put on a desk the day before, including those from the weekend, were gone. She estimated the amount of money missing from the cash box was between $500 and $900. She also discovered that the .38 caliber Smith & Wesson revolver, usually kept in a top drawer of the desk where the money was kept, was missing.

Cleveland police officer Fabian Henderson arrived at the hotel at approximately 10:48 a.m. Officer Henderson and his partner searched for Eunice and eventually found her body in the basement.

While the police were conducting their search, the two customers who had been occupying a room at this time left the premises. Ganelle testified that they were regular customers, identified...