Johnson v. Tewalt, 1:18-cv-00216-DCN

CourtUnited States District Courts. 9th Circuit. District of Idaho
PartiesDAVID LEON JOHNSON, Petitioner, v. JOSH TEWALT, Director of the Idaho Department of Correction; and CARMEN DYAS, Senior Probation Officer for Interstate Compact Parolees, also with the Idaho Department of Correction, Respondents.
Docket Number1:18-cv-00216-DCN
Decision Date25 February 2022


JOSH TEWALT, Director of the Idaho Department of Correction; and CARMEN DYAS, Senior Probation Officer for Interstate Compact Parolees, also with the Idaho Department of Correction, Respondents.

No. 1:18-cv-00216-DCN

United States District Court, D. Idaho

February 25, 2022


David C. Nye, Chief U.S. District Court Judge.

Petitioner David Johnson's remaining habeas corpus claims (One, Two, Three, and Five) are fully briefed and ripe for adjudication. Dkts. 1, 19, 23, 25. Claim Four was dismissed earlier on procedural default grounds. Dkt. 17.

The Court takes judicial notice of the records from Petitioner's state court proceedings lodged by the parties. See Fed. R. Evid. 201(b); Dawson v. Mahoney, 451 F.3d 550, 551 (9th Cir. 2006). Having carefully reviewed the record, including the state court record, the Court finds that the parties have adequately presented the facts and legal arguments in the briefs and record and oral argument is unnecessary. See D. Idaho L. Civ. R. 7.1(d). Accordingly, the Court enters the following Order denying the Petition for Writ of Habeas Corpus.



The Idaho Supreme Court explained the background of the case as follows:

David Leon Johnson, the appellant, was charged [by indictment] with three counts of lewd and lascivious conduct with a minor under sixteen pursuant to I.C. § 18-1508 He was charged for offenses he allegedly committed against his daughter, A.J., who was between six and seven years old at the time of the charged conduct. Mr. Johnson had a home in Paul, Idaho, with his wife and five children at the time. The first two counts allegedly occurred over the first weekend of spring break, 2004. Michelle Johnson, Mr. Johnson's wife at the time, purportedly took the couple's children to Utah to visit her parents but left A.J. behind with Mr Johnson. A.J. testified that while she was home alone with Mr. Johnson, he molested her on two occasions. First, he allegedly touched and penetrated A.J.'s genitalia with his hands, made A.J. touch his penis manually until he ejaculated, and then forced her to lick chocolate off of his penis. Second, Mr. Johnson allegedly attempted to penetrate A.J. in the shower by lifting her up and onto his penis. The third count alleged that Mr. Johnson molested his daughter over the Memorial Day weekend of 2005

State's Lodging B-4, pp. 1-2 (first direct appeal) (parenthetical added, see State's Lodging A-1, pp. 1-4).

The victim was seven when the molestation occurred, and nine, at an education level between second and third grade, when she first testified at trial in 2006. Her testimony contained details of sexual activity that a child that young would not have known. See State's Lodging A-7, pp. 759-772. For example:

Q. Can you tell me what your dad's private was doing when he had you sit on it?
A. Can I do it with my bunny's ear?
Q. Okay.
Ms. Cannon: Your Honor, I'll indicate for the record that the witness has held up her stuffed rabbit who has accompanied her to the witness stand, and using an ear, held one of the ears straight, sticking forward.”
The Court: The record will so reflect.

State's Lodging A-7, p. 772.

In the 2006 jury trial, Petitioner was convicted of two counts of lewd conduct and acquitted of the third count. State's Lodgings A-1, pp. 1-4; A-2, pp. 320-321. On direct appeal, the Idaho Supreme Court agreed with Petitioner that the trial court committed harmful error in admitting the testimony of Petitioner's sister that he had sexually molested her when he was a teenager. State's Lodging B-4. In 2010 the conviction was vacated and the case remanded for a new trial.

In 2011, a new trial was held. Petitioner's sister's testimony about past unrelated acts of molestation was not presented at the second trial. Petitioner again was found guilty of two counts of lewd conduct. State's Lodging E-3, p. 608. Petitioner was sentenced to two concurrent five-year fixed terms in prison, with ten years indeterminate. State's Lodging E-3, pp. 612-614.

Petitioner's counsel did not file a notice of appeal, and on post-conviction review Petitioner asserted ineffective assistance of counsel for the failure. The parties stipulated that Petitioner's direct appeal time should be re-opened. State's Lodging E-2, pp.77-79; 88-91. The state district court restored Petitioner's direct appeal rights by re-entering the judgment of conviction. Id. Petitioner's other post-conviction claims were summarily dismissed. State's Lodgings E-2, pp. 274-295.


Petitioner appealed the post-conviction rulings. State's Lodging E-2, pp.101-103, 359-363. His appeal was eventually dismissed for failure to file a pro se brief, after his counsel withdrew for lack of a viable issue for appeal. State's Lodging G-1 to G-4. Through counsel, Petitioner proceeded on his direct appeal. State's Lodgings F-1. The Idaho Supreme Court granted no relief. State's Lodging F-5.

Through newly-retained counsel, Petitioner filed this habeas corpus action. Petitioner raised five claims in his federal Petition for Writ of Habeas Corpus, of which four remain to be decided on the merits. Petitioner is now on parole but desires to continue to challenge his convictions.


A. AEDPA Deferential Review Standard

Federal habeas corpus relief may be granted where a petitioner “is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). Title 28 U.S.C.§ 2254(d), as amended by the Anti-terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), governs a challenge to a state court judgment that addressed the merits of any federal claim. The AEDPA limits relief to instances where the state court's adjudication of the petitioner's claim:

1. resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
2. resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court
proceeding. 28 U.S.C. § 2254(d). A federal habeas court reviews the state court's “last reasoned decision” in determining whether a petitioner is entitled to relief. Ylst v. Nunnemaker, 501 U.S. 797, 804 (1991).

A federal court cannot grant habeas relief simply because it concludes in its independent judgment that the state court's decision is incorrect or wrong; to prevail, the Petitioner must show that the state court's application of federal law was objectively unreasonable. Lockyer v. Andrade, 538 U.S. 63, 75 (2003); Bell v. Cone, 535 U.S. 685, 694 (2002). Stated differently, if fairminded jurists could disagree on the correctness of the state court's decision, then relief is not warranted under § 2254(d)(1). Harrington v. Richter, 562 U.S. 86, 101 (2011). The Supreme Court emphasized that “even a strong case for relief does not mean the state court's contrary conclusion was unreasonable.” Id. (internal citation omitted).

Though the source of clearly established federal law must come only from the holdings of the United States Supreme Court, circuit precedent may be persuasive authority for determining whether a state court decision is an unreasonable application of Supreme Court precedent. Duhaime v. Ducharme, 200 F.3d 597, 600-01 (9th Cir. 1999). However, circuit law may not be used “to refine or sharpen a general principle of Supreme Court jurisprudence into a specific legal rule that th[e] [Supreme] Court has not announced.” Marshall v. Rodgers, 569 U.S. 58, 64 (2013).

B. De Novo Review Standard

In some instances AEDPA deferential review under § 2254(d)(1) does not apply and


the federal district court reviews a claim de novo (anew). Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002). As in the pre-AEDPA era, a district court can draw from both United States Supreme Court and well as circuit precedent, limited only by the non-retroactivity rule of Teague v. Lane, 489 U.S. 288 (1989).

Under de novo review, if the factual findings of the state court are not unreasonable, the Court must apply the presumption of correctness found in 28 U.S.C. § 2254(e)(1) to any facts found by the state courts. Pirtle, 313 F.3d at 1167. Contrarily, if a state court factual determination is unreasonable, or if there are no state court factual findings, the federal court is not limited by § 2254(e)(1), the federal district court may consider evidence outside the state court record, except to the extent that § 2254(e)(2) might apply. Murray v. Schriro, 745 F.3d 984, 1000 (9th Cir. 2014).

C. Harmless Error Standard

Generally, even if a petitioner succeeds in demonstrating a constitutional error in the course of his conviction, he is entitled to federal habeas relief only if he “can establish that [the error] resulted in ‘actual prejudice.'” Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). Under the Brecht standard, an error is not harmless, and habeas relief must be granted, only if the federal court has “grave doubt about whether a trial error of federal law had substantial and injurious effect or influence in determining the jury's verdict.” O'Neal v. McAninch, 513 U.S. 432, 436 (1995) (internal quotation marks omitted).

D. Presumption of Correctness of State Court Findings of Fact

A federal court cannot grant habeas relief simply because it concludes in its independent judgment that the state court's factfinding or legal conclusions are incorrect


or wrong. Lockyer v. Andrade, 538 U.S. 63, 75 (2003); Bell v. Cone, 535 U.S. 685, 694 (2002); Pizzuto v. Yordy, 947 F.3d 510, 530 (9th Cir. 2019).

On federal habeas review, the findings of fact of the state appellate court (and any state district court findings of fact not in conflict with state appellate...

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