Johnson v. State of Alabama

• Decision Date: 10 July 2001
• Docket Number: No. 99-13198,99-13198
• Citation: 256 F.3d 1156
• Parties: (11th Cir. 2001) ANTHONY KEITH JOHNSON, Petitioner-Appellant, v. STATE OF ALABAMA, JOHN E. NAGLE, Respondents-Appellees
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1156

256 F.3d 1156 (11th Cir. 2001)

ANTHONY KEITH JOHNSON, Petitioner-Appellant, v. STATE OF ALABAMA, JOHN E. NAGLE, Respondents-Appellees.

No. 99-13198

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

July 10, 2001

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[Copyrighted Material Omitted] Appeal from the United States District Court for the Northern District of Alabama. D. C. Docket No. CV 93-N-1121

Before TJOFLAT, BLACK and MARCUS, Circuit Judges.

MARCUS, Circuit Judge:

In this appeal, we consider the request for a writ of habeas corpus by Petitioner Anthony Keith Johnson, a state prisoner in Alabama. Johnson was indicted and convicted of capital murder in the 1984 shooting death of Kenneth Cantrell in Morgan County, Alabama. The state trial court imposed a sentence of death. That judgment was later upheld on direct appeal and again on collateral attack by the Alabama Court of Criminal Appeals. In this federal habeas petition, Johnson argues that his conviction should be set aside on a variety of grounds. He contends, among other things, that his trial attorneys rendered him constitutionally ineffective assistance by choosing a flawed defense strategy. The district court conducted a hearing on Johnson's petition and subsequently issued a lengthy and well-reasoned order denying all relief. Johnson has now sought review from this Court. Having carefully reviewed the record and considered the parties' arguments, we affirm.

I.

A.

The facts presented at trial are set forth at length in the district court's order as well as the opinion on direct review of the Alabama Court of Criminal Appeals. See Johnson v. Nagle, 58 F. Supp. 2d 1303, 1314-15 (N.D. Ala. 1999); Johnson v. State, 521 So. 2d 1006, 1007-08 (Ala. Crim. App. 1986), aff'd, 521 So. 2d 1018 (Ala. 1988), cert. denied, 488 U.S. 876, 109 S. Ct. 193 (1988). On the evening of March 11, 1984, the victim, Kenneth Cantrell, and his wife were at their home in Hartselle, Alabama. The Cantrells had been in the jewelry business for 24 years and at this time were conducting the business from their home. Mrs. Cantrell received a phone call from a person who identified himself as Bill Spears from Florence, Alabama, and asked to speak to Mr. Cantrell. He told Mr. Cantrell that he would like to purchase some jewelry from him, and they arranged a meeting a short time thereafter at the Cantrell home. Mr. Cantrell was apparently suspicious of the caller, because he asked his wife to hide his wallet and bring him his .38 caliber pistol. When Mrs. Cantrell heard a knock at the door, which led from their carport into the combined living room and dining room area of their home, she went to answer it. She observed that the man already had the storm door open, but she had to open the door to hear what he had to say.

When she opened the door she encountered a man between 45 and 50 years of age who identified himself as Bill Spears. She noticed that he held one hand behind his back, and she asked if he was concealing something. He said that he was not and showed her his hand. At the same time he motioned for another man who had been hiding in the carport to come forward. The man already at the door then grabbed Mrs. Cantrell, and the other man, wearing a blue bandana over his face and brandishing a "real shiny" gun in his hand, announced "This is a holdup."

At that point, Mrs. Cantrell broke free from the man holding her, eluded a second attempt by the first man to grab her, and fell at her husband's feet between the couch and coffee table. The first man crossed the room and positioned himself behind a couch he had overturned. The second man then entered the house and began shooting. During or just before the gunfight, Mr. Cantrell allegedly said, "Freeze . . . I have got you covered," to which one of the men replied "No, we have got you, Cantrell." While on the floor, Mrs. Cantrell was able to observe that one of the men wore a pair of brown boots. She also testified that only two guns were fired during the exchange, and that the shots fired at her husband appeared to come from the direction of the second intruder. After several shots had been fired, there was a pause in the gunfire. One of the men said: "Come on in, Bubba . . . we have got him." As the two men in the room made their way to the door, but before they reached it, Mr. Cantrell fired one final shot and someone said "Oh." Mrs. Cantrell then heard the sound of shuffling feet, as if one of the intruders was being assisted out of the house.

After the intruders left, Mrs. Cantrell waited a moment, looked up at her husband, noticed that he had blood all over him, and that she had blood all over her but had not been shot. She then called an ambulance and police to the scene. Mr. Cantrell sustained six gunshot wounds in the exchange, three in the right side of his chest, one in the left side of his chest, one in the back of his right arm, and one to his right middle finger. The bullets that struck him in the chest passed through his lungs and the large arteries from the heart, causing rapid death.

On the evening of March 12, 1984, the day after the murder, Johnson went to the home of David Lindsey, who was a friend, in Newell, Alabama. Johnson told Lindsey that he had been shot. When Lindsey inquired as to what had happened, Johnson stated, "Well you know how it is when you have got the habit." Johnson told Lindsey that he knew Lindsey had been to Vietnam, and asked if Lindsey knew a medic or someone who could get the bullet out. Lindsey told him that he knew no one who could do that.

At Johnson's request, Lindsey, on the morning of March 13, 1984, drove Johnson to a motel in Oxford, Alabama, to meet Gene Loyd. Loyd and Johnson were glad to see each other, and Loyd asked Johnson where he had been. Johnson replied that he "had to get the hell out of Hartselle." He said that he and some friends had gone into a place to "get some gold" and that he had been shot. According to Lindsey, Johnson stated: "I got shot, but I got off a couple of rounds, and I believe I got that son of a bitch." Lindsey returned home, where he heard that a murder had occurred in Hartselle, and he contacted law enforcement.

Johnson was arrested on March 14, 1984, at the motel where he had been taken by Lindsey. A pair of brown boots, which Johnson claimed to own, were found at the scene of the arrest. A bullet wound was discovered in his back; that wound was 50.5 inches from the ground when Johnson was standing.

A search warrant was eventually obtained, and the bullet was surgically removed from Johnson's back.¹ The bullet that was removed from Appellant's back was a .38 special C.C.I. Blazer, the same kind of bullet fired by Mr. Cantrell's revolver. The bullet had the same characteristics as those test-fired from Mr. Cantrell's R.G. revolver and those found at the scene, although it was impossible to make a definite determination that Mr. Cantrell's revolver actually fired the bullet. The bullet that was removed from Johnson's back also had glass embedded in its nose. Test comparisons of the glass removed from the bullet and the glass found in the pane on the back door (through which the unaccounted-for bullet had passed) revealed that all of their physical properties matched, with no measurable discrepancies. Based upon F.B.I. statistical information, it was determined that only 3.8 out of 100 samples could have the same physical properties.²

B.

After the petitioner was arrested as a murder suspect, two attorneys (Propst and DiGiulian) were appointed to represent him. On March 26, 1984, Johnson was formally charged with capital murder. In June 1984, a Morgan County grand jury indicted Johnson for the intentional murder of Kenneth Cantrell during the course of a robbery, in violation of Ala. Code § 13A-5-40. A year later, on June 20, 1985, Johnson was found guilty by a jury of capital murder as charged in the indictment.

On June 21, 1985, the jury voted nine to three to recommend that Johnson be sentenced to life imprisonment without the possibility of parole instead of death. On November 8, 1985, the trial court -- having conducted the sentencing hearing required by Ala. Code § 13A-5-47 -- rejected the recommendation of the jury and sentenced Johnson to death. The court found two of the statutory aggravating circumstances defined at Ala. Code § 13A-5-49: (1) the capital offense was committed by a person under sentence of imprisonment, and (2) the capital offense was committed while the defendant was engaged in the commission of a robbery. The court acknowledged that there was some potentially mitigating evidence, but ultimately ruled that the aggravating circumstances were substantial and controlling.³

Johnson appealed to the Alabama Court of Criminal Appeals, where he was represented by newly-appointed appellate counsel (Mays). On November 25, 1986, the Alabama Court of Criminal Appeals issued a written opinion affirming the conviction and sentence. The Alabama Supreme Court affirmed the conviction and sentence on February 5, 1988, and the United States Supreme Court denied Johnson's petition for the writ of certiorari on October 3, 1988.

After the direct review process was completed, Johnson's present counsel then undertook to represent him in post-conviction proceedings. They started by seeking relief in the Alabama courts, filing on April 4, 1989, a petition under Rule 20 of the Alabama Rules of Criminal Procedure. The petition, as amended, raised a large number of claims. The Circuit Court of Morgan County twice denied the petition, only to have the Court of Criminal Appeals twice remand for the entry of express findings after a hearing. On June 17, 1991, the trial court submitted a more specific order denying the Rule 20 petition.

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