Johnson v. Quarterman

• Decision Date: 28 March 2007
• Docket Number: No. 06-70013.,06-70013.
• Citation: 483 F.3d 278
• Parties: Johnny Ray JOHNSON, Petitioner-Appellant, v. Nathaniel QUARTERMAN, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

483 F.3d 278

Johnny Ray JOHNSON, Petitioner-Appellant, v. Nathaniel QUARTERMAN, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee.

No. 06-70013.

United States Court of Appeals, Fifth Circuit.

March 28, 2007.

Janet Seymour Morrow, Hocker, Morrow & Mathews, Spring, TX, Jerome Godinich, Jr., Law Office of Jerome Godinich, Jr., Houston, TX, for Johnson,

Jeremy Craig Greenwell, Austin, TX, for Quarterman.

Appeal from the United States District Court for the Southern District of Texas.

Before JOLLY, DAVIS and OWEN, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

Johnny Ray Johnson was convicted and sentenced to death for the 1995 capital murder of Leah Joette Smith. In the post-conviction proceedings the Texas courts upheld his conviction and death sentence. In this federal habeas proceeding, the district court denied relief on the ground that Johnson's petition was not timely filed under the filing limitation period of the Antiterrorism and Effective Death Penalty Act ("AEDPA"), and that he had not demonstrated the rare and exceptional circumstances necessary for application of the doctrine of equitable tolling. Alternatively, the district court held that the state court did not unreasonably deny relief on Johnson's claim that his counsel rendered ineffective assistance. The district court denied Johnson's request for a certificate of appealability ("COA").

Before us, Johnson requests a COA from this court to appeal the district court's denial of relief. With respect to the limitations issue, Johnson argues both equitable and statutory tolling of the deadline. Secondly, Johnson requests a COA for his claim that his counsel rendered ineffective assistance by failing to conduct a complete and thorough mitigation investigation. He contends that readily-available evidence regarding his troubled childhood would have been discovered and that this evidence could have offered some degree of understanding of and explanation for his conduct as an adult. His third ground for a COA is that counsel were ineffective in failing to have a mental health expert conduct a psychological evaluation, and that this failure was unreasonable trial strategy because it was based on insufficient investigation.

We deny Johnson's request for a COA. We conclude that the district court's holding that Johnson's federal habeas petition was untimely under AEDPA is not debatable among jurists of reason. We thus find it unnecessary to address the ineffective assistance claim, and DENY the COA.

I.

A.

Johnson was convicted and sentenced to death for the March 27, 1995 capital murder of Leah Joette Smith during the course of committing or attempting to commit aggravated sexual assault. The State presented evidence, including Johnson's confession, that Johnson offered to give Smith, who was addicted to crack cocaine, some crack cocaine in exchange for sex. After Smith smoked the crack, she refused to have sex with Johnson. He became angry and grabbed her, ripped her clothing off, and threw her to the ground. When she fought back with a wooden board, Johnson repeatedly struck her head against the cement curb. After he hit her head against the cement three or four times, she stopped fighting. He then sexually assaulted her. During the assault, Smith told Johnson that he had better enjoy it because she was going to file rape charges against him. Johnson confessed that he got very angry when Smith hit him with the board and that it was "like something in my head was just saying `KILL, KILL, KILL.'" After sexually assaulting Smith, Johnson stomped on her face five or six times. He walked away, but realized that he had left his wallet at the scene, so he returned. In his confession, he stated that when he saw Joette's body face up and naked, he sexually assaulted her again and then picked up his wallet and her boots and left Smith there on the ground to die.

Smith sustained numerous severe injuries to her mouth, face, head, and neck: her teeth were knocked out, her tongue was displaced, both sides of her jaw bone were fractured, and she sustained scalp lacerations and a subdural hematoma. The medical examiner testified that she died as a result of swallowing her own blood that had accumulated in the back part of her throat when her jaw bones were fractured. He testified that the subdural hematoma also contributed to her death, but that she could have survived it had she received prompt medical attention. The medical examiner testified that Smith did not die instantly, because it takes a while for the blood to accumulate in the back of the throat.

B.

The jury convicted Johnson for Smith's brutal murder. Then at the punishment phase, the jury heard the State's evidence of Johnson's extensive criminal history, beginning in 1975, including numerous other brutal sexual assaults and murders.

Johnson's niece, Elizabeth Wright, testified that when she was eight or nine years old, Johnson asked her to walk to a store in Houston with him. As they were walking down a trail leading to the back of the store, Johnson knocked Elizabeth down, covered her mouth, pulled her pants to the side, and raped her. He threatened to kill her if she ever told anyone.

In 1983, Johnson was convicted of sexual assault in Travis County and was sentenced to five years in prison. He confessed to raping numerous women in Houston and Austin after his release from prison. When he drove a cab, he stated that he would pick up prostitutes and take them out to the country, rape them, and leave them there, naked.

Theresa Lewis testified that Johnson picked her up in his cab in 1986. She got into the backseat, but Johnson insisted that she sit in the front seat. When he asked her to have sex with him in exchange for $20, she refused and told him she was not a whore. This made him so angry that he pulled over, grabbed her by the neck and began choking her. When she fought back, he struck her in the face with his fist, and then raped her. He was convicted for that crime in 1987, and sentenced to five years in prison.

Johnson then met Dora Ann Moseley, a prostitute, who became his wife. They moved to Austin in 1991 and had some children together. Johnson once beat her so badly that he claims he would have killed her if the police had not been called. She filed a police report a couple of weeks later, after he beat her again. Johnson spent six months in jail for that beating.

Johnson confessed that in the summer of 1994, he met a girl on 11th Street in Austin. They smoked crack and drank, and when she refused to have sex with him, he beat her. He said that she pulled out a razor and cut him on the left side of his neck and that he then bashed her head in and stomped on her. He then claimed that he took her head and gave himself oral sex before having "regular" sex with her. He left her dead body behind a drug store on 11th Street.

Johnson confessed that he then raped a woman named Amy on top of a hill across from the Austin police station. He then raped a girl named Eva. When Eva tried to steal his crack cocaine, he grabbed her by the hair, smashed her head into a rock, and then raped her. He said that Eva ran away, yelling and screaming. Shortly before Christmas in 1994, Johnson confessed that he lured a girl into a graveyard in exchange for crack cocaine, and that he raped her three or four times and "slapped her around." He returned to Houston at the end of December 1994.

In February 1995, Johnson sexually assaulted Debra Jenkins, his brother's common-law wife's sister-in-law. She testified that he grabbed her by the throat, threw her onto a bed, and began choking her. He cut the crotch of her pajamas with a pair of scissors, and raped her twice.

On March 27, 1995, a citizen found the badly decomposed body of a female in her thirties, face-down in a water-filled gully near some railroad tracks. The victim had sustained numerous lacerations on her face, as well as severe injuries to her mouth, and there was evidence of manual strangulation. Johnson confessed that he raped and killed this woman, whose identity had not been determined as of the time of Johnson's trial. He said he met her at a crack house and offered her some crack cocaine in exchange for sex. She tried to leave after he refused to give her more crack until she had sex with him, so he grabbed her by the throat and hair and threw her to the ground. She grabbed a rock and hit him on the head and he became angry and banged her head on the railroad track. After she passed out, he sexually assaulted her, then dragged her to the gully and left her there.

The jury also heard his confession that, three days later, he killed another woman. He said that he took her to a warehouse to smoke some crack cocaine. He became angry when she smoked his crack but refused to have sex with him, so he grabbed her by the neck and threw her down on the ground and sexually assaulted her while he choked her. He sexually assaulted her again later, and they smoked some more crack. When she jumped up, he caught her by the hair. When she kept fighting, he banged her head on the pavement until she became unconscious.

The evidence of his brutal rapes and murders seemed endless. On April 28, 1995, the partially clothed body of a female was found underneath a highway overpass in Houston. She had sustained massive head injuries, including a fractured skull and cheekbone, and a large chunk of concrete with blood all over it was found near her head. The autopsy revealed that she died from a crushed head due to blunt trauma and asphyxia due to strangulation. The marking on her throat was consistent with someone placing his foot on her throat and stepping down. Johnson confessed that he killed this woman, who had not been identified as of the time of his trial. They smoked crack cocaine together and he became angry when she refused to have sex with him. She hit him with a wine bottle and he grabbed...