Johnson v. Rutledge
| Docket Number | 4:21-cv-00373-KGB |
| Decision Date | 31 March 2022 |
| Parties | STACEY EUGENE JOHNSON, PLAINTIFF v. LESLIE RUTLEDGE, Attorney General; et al., DEFENDANTS |
| Court | U.S. District Court — Eastern District of Arkansas |
Before the Court is a motion to dismiss filed by defendants Leslie Rutledge, Attorney General of the State of Arkansas; Erin Hunter, Sevier County Prosecuting Attorney; Kermit Channell Director of the Arkansas State Crime Laboratory; and Stacey Pectol, Clerk of the Courts of the Arkansas Supreme Court all in their official capacities only (Dkt. No. 6). Plaintiff Stacey Eugene Johnson filed a response in opposition to the motion (Dkt. No. 14), and defendants requested and were granted leave by this Court to file a reply (Dkt. Nos. 15 16, 18).
For the following reasons, the Court grants, in part, and denies, in part, the motion to dismiss (Dkt. No. 6).
In 1997, Mr. Johnson was sentenced to death after a jury trial in Sevier County, Arkansas (Dkt. No. 1, ¶ 1). Arkansas law provides a right to DNA testing pursuant to Act 1780 (“Act 1780”).[1] Since his conviction and his sentence was imposed, Mr. Johnson has pursued testing pursuant to Act 1780 (Dkt. No. 1, ¶ 3). In this lawsuit, he “challenges the constitutionality of Act 1780 on its face, as applied by the State of Arkansas.” (Dkt. No. 1, ¶ 4).
Mr. Johnson brings this action for declaratory and injunctive relief under 42 U.S.C. § 1983 against defendants in their official capacities (Dkt. No. 1). Mr. Johnson asserts the following claims: (1) denial of due process in violation of the Due Process Clause of the Fourteenth Amendment of the United States Constitution, asserting facial and as-applied challenges, (2) denial of the right to meaningful access to the courts in violation of the Petition Clause of the First Amendment to the United States Constitution, (3) cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution, and (4) denial of the opportunity to prove actual innocence in violation of the Due Process Clause of the Fourteenth Amendment to the United States Constitution (Id., at 15-25).
Mr. Johnson was first convicted of Carol Heath's murder and sentenced to death in 1994. That conviction was reversed on appeal for evidentiary errors. Johnson v. Arkansas, 934 S.W.2d 179 (Ark. 1996) (“Johnson I”). Mr. Johnson was re-tried in 1997 and convicted again. Mr. Johnson's retrial proceeded with new DNA testing having been conducted on certain evidence, including a partially smoked cigarette, green shirt, and African American hairs. 591 S.W.3d at 267-68. “Under the new testing, the probability of the saliva on the cigarette belonging to anyone other than Johnson decreased to one in 28 million African Americans, ” and “the African American hairs found on and around Heath's body were consistent with Johnson's DNA and would occur in one of 720 million African Americans.” Id. A second jury reached the same verdict after the second trial, and that conviction was affirmed on appeal. Johnson v. Arkansas, 27 S.W.3d 405 (Ark. 2000) (“Johnson II”). Numerous courts have examined Mr. Johnson's two trials and the evidence presented. See Johnson v. Arkansas, 591 S.W.3d 265 (Ark. 2019) (examining the evidence presented against Mr. Johnson). As a result, the Court will not restate all of those details in this Order.
After his retrial, Mr. Johnson then filed an unsuccessful petition for post-conviction relief under Arkansas Rule of Criminal Procedure 37, alleging ineffective assistance of counsel. Johnson v. State, 157 S.W.3d 151 (Ark. 2004) (“Johnson III”). At the same time, he filed a state habeas corpus petition seeking DNA testing under the version of Act 1780 of 2001 then in place. He sought DNA testing of Caucasian hairs found in Ms. Heath's apartment and on the green shirt, and he sought re-testing of the partially smoked cigarette and some of the African American hairs. Johnson III, 157 S.W.3d 159.
The Arkansas Supreme Court denied Mr. Johnson's request as to the Caucasian hairs because Mr. Johnson could have had them tested prior to trial and chose not to and because the prosecution stipulated that these hairs belonged to someone other than Mr. Johnson. Id. at 162-63. Thus, “the jury knew there were hairs that belonged to someone other than [Mr.] Johnson and it still convicted him.” Id. at 162. The Court held that the hairs were not “‘materially relevant to [Mr. Johnson's] assertion of actual innocence' as required by the then-applicable version of Act 1780.” Id. ().
The court also denied further re-testing of the partially smoked cigarette. Between the first and second DNA tests, the odds of the saliva belonging to someone other than Mr. Johnson increased from one in 250 to one in 28 million. Id. at 162-63. Mr. Johnson claimed that new testing had been developed that could test for “new genetic markers, ” but the court noted that it was “extremely unlikely” that Mr. Johnson “and someone else had the exact same DNA genetic profile-down to a certainty of 1 in 28 million-and yet differed in other genetic markers.” Id. Given those odds, according to the Arkansas Supreme Court Mr. Johnson was merely “seeking an endless succession of retesting of old evidence, ” and further testing of the cigarette was “unlikely to ‘significantly advance'” his “‘claim of innocence.'” Id.
As to the African American hairs, the court was under the mistaken impression that those hairs had not been retested since the first trial and remanded for further testing of those hairs to be conducted. Johnson v. State, 235 S.W.3d 872 (Ark. 2006) (“Johnson IV”). After the trial court found that the hairs had in fact been re-tested prior to the second trial, the Arkansas Supreme Court denied further retesting. Id. at 875-76.
Mr. Johnson then unsuccessfully pursued relief in federal court. Johnson v. Norris, Case No. 5:06-cv-00185 JLH, 2007 WL 2343883 (E.D. Ark.) (Holmes, J.), aff'd, 537 F.3d 840 (8th Cir. 2008), cert. denied 555 U.S. 1182 (2009).
Arkansas scheduled Mr. Johnson's execution for April 20, 2017. In the weeks leading up to his execution, Mr. Johnson filed several petitions seeking to recall the mandate or for a writ of error coram nobis in his state-court cases, a stay of his execution, and DNA testing of the same Caucasian hairs. 591 S.W.3d at 268-69.
Mr. Johnson filed a petition in the state trial court for post-conviction DNA testing of 26 pieces of evidence. The Arkansas Supreme Court categorized the evidence as: “(1) evidence of an alleged sexual assault; (2) evidence from the roadside park; and (3) evidence on and around Heath's body.” Id., at 268-69 n.2, n.3, n.4. The trial court denied Mr. Johnson's request, but the Arkansas Supreme Court granted a last-minute stay of execution and remanded for an evidentiary hearing on Mr. Johnson's petition for DNA testing. Id. at 269. At that hearing, Mr. Johnson presented evidence on three methods of DNA testing-touch DNA, mitochondrial DNA, and Y-STR DNA. Id. The trial court again denied Mr. Johnson's petition, concluding that he did not meet the requirements of Act 1780. Id.
The Arkansas Supreme Court affirmed on direct appeal and held that Mr. Johnson's proposed testing “could not raise a reasonable probability that Mr. Johnson did not commit the offense.” Id., at 270. The Arkansas Supreme Court explained its application of the “reasonable probability” standard. Id., at 270-71.
Mr. Johnson filed a petition for rehearing, for the first time suggesting that the Arkansas Supreme Court's application of Act 1780 violated the Federal Constitution. Pet for Rehearing, Johnson v. State, Ark. Sup. Ct. Case No. CR-18-700 (Dec. 17, 2019). Mr. Johnson argued that the court “violated the[] principles of fundamental fairness” by concluding that Mr. Johnson's proposed DNA testing would not significantly advance his claim of innocence and by interpreting Act 1780 to require courts to consider the weight of the evidence against a prisoner in determining whether DNA testing would advance a claim of innocence. Id., at 2.
The Arkansas Supreme Court denied rehearing, declining to revisit its prior holdings. It further noted that “for the first time in this case, Johnson contend[ed] that his claims implicate a right to due process and access to the courts under the United States Constitution.” Johnson v. State, 2020 Ark. 86, 2020 WL 830044, at *2 (Feb. 20, 2020). Because entirely new arguments may not be raised for the first time in a petition for rehearing, see Ark. Sup. Ct. R. 2-3(g), the court refused to consider Mr. Johnson's “novel constitutional arguments that were raised for the first time in” his rehearing petition. Id.
Mr. Johnson then filed a petition for writ of certiorari in the United States Supreme Court, raising the same federal constitutional claims that the Arkansas Supreme Court rejected. The Court denied Mr. Johnson's petition without dissent. See Johnson v. Arkansas, No. 20-48, 2021 WL 666378 (U.S. Feb. 22, 2021).
Defendants in their motion to dismiss cite Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) (Dkt. No. 6).
A motion to dismiss pursuant to Rule 12(b)(1) challenges the Court's subject matter jurisdiction and requires the Court to examine whether it has authority to decide the claims. In deciding a motion under Rule 12(b)(1) the Court must first “distinguish between a ‘facial attack' and a ‘factual attack.'” Osborn v. United States, 918 F.2d 724, 729 n.6 (8th Cir. 1990) (quoting Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir. 1980)). “In a facial challenge to...
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