Johnson v. Sec'y

• Decision Date: 14 June 2011
• Docket Number: No. 09–15344.,09–15344.
• Citation: 22 Fla. L. Weekly Fed. C 2167,643 F.3d 907
• Parties: Terrell M. JOHNSON, Petitioner–Appellant,v.SECRETARY, DOC, Respondent–Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

643 F.3d 907

22 Fla. L. Weekly Fed. C 2167

Terrell M. JOHNSON, Petitioner–Appellant,

v.SECRETARY, DOC, Respondent–Appellee.

No. 09–15344.

United States Court of Appeals, Eleventh Circuit.

June 14, 2011.

William M. Hennis, III, Neal A. Dupree (Court–Appointed), Capital Collateral Regional Counsel—South, Fort Lauderdale, FL, for Appellant.Kenneth Sloan Nunnelley, Dept. of Legal Affairs, Daytona Beach, FL, for Appellee.Appeal from the United States District Court for the Middle District of FloridaBefore CARNES, HULL, and WILSON, Circuit Judges.CARNES, Circuit Judge:

Earlier this year the Supreme Court reminded lower federal courts that when the state courts have denied an ineffective assistance of counsel claim on the merits, the standard a petitioner must meet to obtain federal habeas relief was intended to be, and is, a difficult one. Harrington v. Richter, ––– U.S. ––––, 131 S.Ct. 770, 786, 178 L.Ed.2d 624 (2011). The standard is not whether an error was committed, but whether the state court decision is contrary to or an unreasonable application of federal law that has been clearly established by decisions of the Supreme Court. 28 U.S.C. § 2254(d)(1). As the Supreme Court explained, error alone is not enough, because “[f]or purposes of § 2254(d)(1), an unreasonable application of federal law is different from an incorrect application of federal law.” Harrington, ––– U.S. at ––––, 131 S.Ct. at 785 (quotation marks omitted). And “even a strong case for relief does not mean the state court's contrary conclusion was unreasonable.” Id., 131 S.Ct. at 786.

When faced with an ineffective assistance of counsel claim that was denied on the merits by the state courts, a federal habeas court “must determine what arguments or theories supported or, [if none were stated], could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the Supreme] Court.” Id., 131 S.Ct. at 786. So long as fairminded jurists could disagree about whether the state court's denial of the claim was inconsistent with an earlier Supreme Court decision, federal habeas relief must be denied. Id., 131 S.Ct. at 786. Stated the other way, only if “there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the Supreme] Court's precedents” may relief be granted. Id., 131 S.Ct. at 786.

Even without the deference due under § 2254, the Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), standard for judging the performance of counsel “is a most deferential one.” Harrington, ––– U.S. at ––––, 131 S.Ct. at 788. When combined with the extra layer of deference that § 2254 provides, the result is double deference and the question becomes whether “there is any reasonable argument that counsel satisfied Strickland's deferential standard.” Id., 131 S.Ct. at 788. Double deference is doubly difficult for a petitioner to overcome, and it will be a rare case in which an ineffective assistance of counsel claim that was denied on the merits in state court is found to merit relief in a federal habeas proceeding. This is one of those rare cases.

I.

Terrell Johnson, who is sixty-five years old, has been on death row for nearly half of his life. He shot and killed a bartender and a customer at a tavern in Florida in 1979, and the next year he was convicted for first-degree murder of the bartender and second-degree murder of the customer. By a vote of 7 to 5, a Florida jury recommended a death sentence on the first-degree murder conviction, and the trial judge sentenced Johnson to death.

It took Johnson's case a quarter of a century to make it through all of his state court appeals and post-conviction proceedings. See Johnson v. State, 442 So.2d 193 (Fla.1983) ( Johnson I ) (direct appeal); Florida v. Johnson, 9th Judicial Circuit, No. CR 80–101 (June 12, 1989) (Order on Motion for Post Conviction Relief) ( Johnson II ); Johnson v. State, 593 So.2d 206 (Fla.1992) ( Johnson III ); Johnson v. Singletary, 695 So.2d 263 (Fla.1996) ( Johnson IV ); Johnson v. State, 804 So.2d 1218 (Fla.2001) ( Johnson V ); Johnson v. State, 904 So.2d 400 (Fla.2005) ( Johnson VI ). In 2006 Johnson filed in federal district court a petition for a writ of habeas corpus under 28 U.S.C. § 2254. The district court denied that petition three years later. Johnson v. Sec'y, Dep't of Corr., No. 06–577 (M.D.Fla. Aug. 26, 2009).

Johnson appealed, and this Court granted a certificate of appealability on two issues: (1) whether Johnson was denied effective assistance of counsel in the investigation and presentation of mitigating circumstances at the sentence stage; and (2) whether he was denied a constitutional or statutory right to the independent assistance of a mental health expert to testify about mitigating circumstances at the sentence stage.

II.

A. The Arrest

On January 5, 1980, Johnson was arrested in Oregon after he committed a robbery and attempted murder in that state. A pistol that he had in his possession linked him to the killings of the two men in Florida, James Dodson and Charles Himes. Three days after his arrest for the Oregon crimes, and while still in custody there, Johnson signed a written confession admitting that he had killed Dodson and Himes, and he was extradited to Florida to face charges there. On May 23, 1980, Johnson was indicted on two counts of first degree murder for the deaths of Dodson and Himes, and four days later the Florida trial court appointed attorney Gerald Jones to represent him.

B. The Guilt Stage

As expected, the guilt stage of Johnson's trial for the two murders did not take long. It began on Tuesday morning, September 23, 1980. Over a period of two days the State presented sixteen witnesses. The defense called none. As the Florida Supreme Court found, the State proved the following:

On December 4, 1979, Terrell Johnson went to Lola's Tavern in Orange County to redeem a pistol he had pawned to James Dodson, the bartender/owner of the tavern. Although Dodson had given Johnson fifty dollars when the gun was pawned, he demanded one hundred dollars to return it. Before paying for the gun, Johnson asked to be allowed to test fire it and took the gun to an open field across the road from the bar where he fired several shots. While returning to the bar, Johnson, irate at what he considered to be Dodson's unreasonable demand, decided to rob the tavern. Johnson told police that he took Dodson and a customer, Charles Himes, into the men's room at the end of the bar, intending to tie them up with electrical cord. The customer lunged at Johnson and he began firing wildly, shooting both men. He then returned to the bar and cleaned out the cash drawer, also taking Dodson's gun, which was kept under the bar. As he was wiping the bar surfaces to remove fingerprints, Johnson heard movement from the back room and returned to find the customer still alive. Johnson shot him again, not, according to Johnson, “to see him dead,” but to “stop his suffering.”

Johnson I, 442 So.2d at 194–95.

On Friday, September 26 at 10:50 p.m., which was after two days of jury selection and two days of trial, the jury returned a verdict finding Johnson guilty of the first degree murder of Dodson and of the second degree murder of Himes. Id. After the jury verdict, Jones requested more time to prepare for the sentence hearing but the trial judge set it to begin at 10:00 a.m. on Monday morning, September 29, just two-and-a-half days later.

C. The Sentence Stage

At the beginning of the sentence hearing the jury learned for the first time about Johnson's criminal record. The parties stipulated that: Johnson was convicted of attempted robbery in 1968; he was on parole for burglary at the time he killed Dodson and Himes; and one month after those two murders he committed armed robbery and attempted murder in Oregon. Other than those stipulations and supporting documents, the State presented no additional evidence in the sentence stage. The defense presented four witnesses: Arthur Johnson, who is Johnson's father; Nancy Porter, who is Johnson's friend; Dr. Katherine de Blij, who is a psychologist; and Johnson himself.

Johnson's father, who was unemployed and disabled, was the first witness to testify for the defense. He told the jury that Johnson was born in Kentucky in 1946 and has a twin sister, an older brother, and also had a younger brother who had died. Some time after Johnson was born, the family moved to Indiana “for employment purposes.” While they were in Indiana, Johnson and his siblings were put in an orphanage for three months while their parents were separated. Five years later, when Johnson was about 12, his father moved to Florida, again for employment purposes. Instead of bringing his children with him, Johnson's father sent them to live with his parents (Johnson's grandparents) for six months “because [he] didn't have a lot of money.” Jones did not ask Johnson's father to tell the jury if his parents (Johnson's grandparents) had abused Johnson. After their time with the grandparents, Johnson and his siblings were taken to Florida, where their father was employed as a carpenter.

Jones did ask Johnson's father if he had a drinking problem, and he answered: “I didn't think so at the time but—weekend drinking. During the week, no. Just on the weekends.” And when asked whether his wife would “also drink,” he said “yes.” Jones did not ask Johnson's father to give any details about his wife's drinking or whether she was an alcoholic. Johnson's father did say that he was home on the weekends, except for “[m]aybe fishing on Saturday” and “occasionally [he and his wife would] go dancing or something.” Jones did not ask Johnson's father about any physical or emotional abuse he inflicted on Johnson, on Johnson's mother, or on any of Johnson's siblings. Nor...