Johnson v. Singletary

• Decision Date: 26 April 1995
• Docket Number: No. 93-312-Civ-FTM-17D.,93-312-Civ-FTM-17D.
• Parties: Calvin B. JOHNSON, Petitioner, v. Harry K. SINGLETARY, Respondent.
• Court: U.S. District Court — Middle District of Florida

883 F. Supp. 1535

Calvin B. JOHNSON, Petitioner, v. Harry K. SINGLETARY, Respondent.

No. 93-312-Civ-FTM-17D.

United States District Court, M.D. Florida, Fort Myers Division.

April 26, 1995.

Calvin B. Johnson, Bowling Green, FL, pro se.

Stephen Allan Baker, Atty. Gens. Office, Dept. of Legal Affairs, Tampa, FL, for respondents Harry K. Singletary, Jr., Robert A. Butterworth.

ORDER

KOVACHEVICH, District Judge.

Petitioner initiated this action on November 5, 1993, by filing a Petition for Writ of Habeas Corpus (hereinafter Petition) pursuant to 28 U.S.C. § 2254. Petitioner challenges his conviction, following a jury trial, for six counts of attempted murder of a law enforcement officer and one count of firing at, within, or into an occupied vehicle.¹ (R. 266) Petitioner was sentenced to fifteen (15) years imprisonment as an habitual felony offender, pursuant to Fla.Stat. § 775.084, for the charge of firing at, or within, or into an occupied vehicle, to run concurrent with six consecutive terms of life imprisonment imposed for the attempted murder convictions, each with a minimum mandatory of twenty-five (25) years. (R. 256-57)

SUMMARY OF THE FACTS

On January 2, 1990, several officers from the Lee County Sheriff's Department Narcotics Unit entered an area of Lee County known as Charleston Park to conduct an undercover "buy bust." (R. 69-72) According to testimony at Petitioner's trial, the Charleston Park area is a neighborhood known for drug activity and acts of violence against law enforcement officers. (R. 129) The narcotics officers entered Charleston Park at approximately 10:00 p.m. in a white van with green trim. (R. 129, 156) The van was not outfitted with videotape equipment. (R. 75) The officers planned to make an undercover purchase of cocaine from any dealers found in the neighborhood and, immediately after completing the purchase, to arrest the dealers. (R. 72, 100, 130, 148)

Deputy Busbee, in plain clothes and without a bullet-proof vest, was driving the van. (R. 72, 80) Five uniformed officers, and one officer not in uniform, were in the rear of the van, hidden from view by a fabric partition behind the driver. (R. 101, 114, 134) Most of the officers were equipped with a 9 millimeter department-issued firearm, although at least one other officer had both a .357 and a .38 caliber firearm. (R. 194) The uniformed officers intended to arrest the drug dealer as soon as the plain-clothes officer completed the purchase. (R. 72, 100, 130, 148)

Charleston Park has only one road that serves as both the entrance and the exit to the neighborhood. (R. 76) Upon entering the neighborhood, the officers found no dealers on the street corners, which they considered unusual. (R. 120) Busbee turned the van around to make another pass through the neighborhood. As Deputy Busbee drove the van into the neighborhood again, he passed a trailer home rented by Petitioner. (R. 76, 120) Deputy Busbee honked the van's horn, whereupon Petitioner came out of the trailer, approached the van, and entered into a conversation with Deputy Busbee regarding the sale of a twenty-dollar rock of crack cocaine. (R. 76-77)

Petitioner agreed to sell the crack cocaine to Busbee. (R. 77) Petitioner went back into the trailer and returned with a white vial and what appeared to be a .38 caliber revolver. (R. 77) Busbee asked Petitioner whether he had a gun and Petitioner responded that if Busbee were a police officer, Petitioner was going to shoot him. (R. 78) In order to convince Petitioner that he was not a police officer, Deputy Busbee offered to drive the van into Petitioner's driveway. (R. 78) Because the van was parked a little bit past the driveway, it was necessary to turn the van around to drive it into the driveway. (R. 78) While Deputy Busbee was turning the van around, the officers decided to abort the sale. (R. 117) However, to get out of the neighborhood, they had to drive back by Petitioner. (R. 117)

Deputy Busbee turned the van around. (R. 117) One of the officers peered through the partition to look down the street. (R. 117) As the vehicle approached Petitioner, Busbee slowed the van down and started to pull into Petitioner's driveway. (R. 80, 103) Busbee testified that Petitioner then stated "If you're the police I'm going to kill you," and that Petitioner fired at him. (R. 80) At the same time, the uniformed officers exited the side and rear doors of the van to arrest Petitioner. (R. 137) During the ensuing gunfire, Deputy Powell was shot in the chest. (R. 151) The bullet pierced his bullet-proof vest and was caught in the mesh layer of the vest. (R. 151, 191) Petitioner escaped into the darkness, and was apprehended the next morning at his mother's house, which was also in the neighborhood. (R. 82-83)

At trial, the State called the officers involved in the shoot-out. Some could identify Petitioner; others could not. (R. 83, 108, 121, 136, 183, 193) The gun and white vial were never found. (R. 91) A crime scene technician testified that 30 casings were recovered from the scene, but there was no testimony specifying how many of the casings were 9 millimeter, .357 caliber, or .38 caliber. (R. 162) The technician recovered a bullet from a door of the van. (R. 156) A firearms expert analyzed that bullet and the bullet retrieved from Powell's vest. (R. 169) He testified that the two bullets could have come from either a .357 or a .38 caliber revolver. (R. 169-172) He testified that one of the bullets could have been fired by several types of revolvers, possibly a Smith & Wesson. (R. 172) Because the other bullet was damaged, he could not conclusively state that it was fired from the same weapon as the first bullet. (R. 172) Petitioner's hands were not tested for gunpowder residue. (R. 175) The officers' .357 and .38 caliber firearms were not tested to see if they had been fired. (R. 174)

After the State rested, the court denied the defense's motion for a judgment of acquittal, wherein the defense alleged that the State had failed to prove the element of premeditation. (R. 200) Petitioner, represented by a public defender, then presented his case-in-chief. (R. 205-240) The defense called two witnesses to testify to prior incidents where officers harassed Petitioner, resulting in arrest, detention, or investigatory stops. (R. 205-217) This testimony was consistent with defense counsel's cross-examination of State witnesses regarding their prior contacts with Petitioner. (R. 87, 90, 122, 154) Petitioner also took the stand in his own defense and testified that he did talk to Deputy Busbee in the van. (R. 222) However, he claimed that he refused to sell cocaine. (R. 222) He claimed that he was carrying a can opener, not a .38 caliber revolver, because he had just opened a can of food for dinner. (R. 222) Petitioner also claimed that there were two armed drug dealers hiding behind a tree near his trailer. Petitioner claimed that he told Deputy Busbee to leave the neighborhood. (R. 223) He denied threatening or shooting Busbee and claimed that as the van turned around, he was attempting to warn Busbee that the other drug dealers might shoot or rob him. (R. 220-235)

Petitioner's jury trial lasted two days. The jury rejected Petitioner's defense of police harassment and mistaken identity and found him guilty on all counts. (R. 263-266)

PROCEDURAL HISTORY

Petitioner, again represented by a public defender, filed an unsuccessful direct appeal, arguing four issues:

1) The evidence did not support a conviction for attempted first degree murder on Counts II through VI, as there was no showing of premeditation.

2) Petitioner was wrongly convicted of six counts of first degree murder on a law enforcement officer where the evidence failed to establish that six deaths could have occurred.

3) The trial court erred in sentencing Petitioner as an habitual offender upon his conviction for life felonies.

4) The court erred in imposing consecutive minimum mandatory sentences.

The Second District Court of Appeal affirmed Petitioner's convictions and sentences without written opinion.

Petitioner then filed a Motion for Post Conviction Relief, pursuant to Florida Rule of Criminal Procedure 3.850, alleging ineffective assistance of counsel based on trial counsel's failure to "fully" argue the motion for judgment of acquittal, and three claims of ineffective assistance of counsel related to counsel's failure to object to, and admission of, testimony concerning Petitioner's prior criminal activity. The Circuit Court denied the motion, and Petitioner appealed to the Second District Court of Appeal. The District Court of Appeal found Petitioner's first claim meritless, but remanded for further proceedings on the remaining issues.

On remand, the Circuit Court, pursuant to the Second District Court of Appeal's instructions, reviewed the pleadings, the case file, and the trial transcripts, and once again denied Petitioner's motion. On September 15, 1993, the Second District Court of Appeal affirmed, per curiam.

THE INSTANT PETITION

Petitioner filed the instant Petition for Writ of Habeas Corpus on November 3, 1993. He raises the following grounds for relief:

1) Violation of the Fifth and Fourteenth Amendments of the United States Constitution, based on the insufficiency of the evidence to prove premeditation.

2) Violation of equal protection and due process guaranteed by the Fourteenth Amendment to the United States Constitution, based on the insufficiency of the evidence to support Petitioner's conviction on all six counts of attempted murder where the State failed to prove that all six officers could have been injured.

3) Violation of equal protection and due process guaranteed by the Fourteenth Amendment to the United States Constitution, due to Petitioner being sentenced as a violent habitual offender, thereby enhancing the sentence of a life felony, contrary to Section 775.084(b)(1), Florida Statutes.

4) Violation of the Fifth and

...