Johnson v. Upton, 09-16090.
| Decision Date | 23 August 2010 |
| Docket Number | No. 09-16090.,09-16090. |
| Citation | 615 F.3d 1318 |
| Parties | Marcus R. JOHNSON, Petitioner-Appellant, v. Steven UPTON, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
615 F.3d 1318
Marcus R. JOHNSON, Petitioner-Appellant,
v.
Steven UPTON, Respondent-Appellee.
No. 09-16090.
United States Court of Appeals,Eleventh Circuit.
Aug. 23, 2010.
COPYRIGHT MATERIAL OMITTED.
COPYRIGHT MATERIAL OMITTED.
Brian S. Kammer and Thomas H. Dunn (Court-Appointed), GA Resource Ctr., Atlanta, GA, for Johnson.
Patricia Beth Attaway Burton, State of GA Law Dept., Atlanta, GA, for Upton.
Appeal from the United States District Court for the Middle District of Georgia.
Before CARNES, HULL and PRYOR, Circuit Judges.
HULL, Circuit Judge:
Marcus Ray Johnson, a Georgia prison inmate under a death sentence, appeals the district court's denial of his 28 U.S.C. § 2254 petition for a writ of habeas corpus. The issues on appeal concern whether Johnson's trial counsel were ineffective in the penalty phase as to evidence of Johnson's life history, escape from pretrial custody, and future dangerousness. After review and oral argument, we conclude the Georgia state court's denial of Johnson's ineffective counsel claims was not based on an unreasonable determination of the facts or an unreasonable application of clearly established federal law. Thus, we affirm.
On March 24, 1994, Johnson raped, murdered, and mutilated Angela Sizemore a few hours after meeting her at a bar in Albany, Georgia. See Johnson v. State, 271 Ga. 375, 519 S.E.2d 221, 225 (1999). The Georgia Supreme Court set forth the evidence against Johnson:
[T]he victim, Angela Sizemore, met Johnson in a west Albany bar called Fundamentals between 12:30 and 1:30 a.m. on March 24, 1994. Ms. Sizemore had been to a memorial service for an acquaintance the previous day, and she had been drinking so heavily the bar had stopped serving her. Johnson was wearing a black leather jacket, jeans, black biker boots, and a distinctive turquoise ring. According to a witness, Johnson was angry and frustrated because another woman had spurned his advances earlier in the evening. The bar owner and its security officer (who both personally knew Johnson) testified that they saw Johnson and Ms. Sizemore kissing and behaving amorously. [At approximately 2:30 a.m.] Johnson and Ms. Sizemore left Fundamentals together; the bartender handed Ms. Sizemore's car keys directly to Johnson. They were seen walking towards Sixteenth Avenue.
At approximately 8:00 a.m. on March 24, 1994, a man walking his dog found Ms. Sizemore's white Suburban parked behind an apartment complex in east Albany, on the other side of town from Fundamentals. Ms. Sizemore's body was lying across the front passenger seat ....
Four people testified that they saw Johnson about an hour before the body was found. Two witnesses testified that [at around 7:00 a.m.] they saw him walk from the area where the victim's Suburban was parked through an apartment complex to a bus stop. He boarded a bus and asked if the bus would take him to the Monkey Palace (a bar where Johnson worked) in west Albany. Three witnesses, including the bus driver, identified Johnson as being on the bus (one of the witnesses who saw Johnson walk through the apartment complex boarded the same bus as he did). Two witnesses stated that their attention was drawn to Johnson because that area of Albany is predominantly African-American, and it was extremely unusual to see a Caucasian there at that time of day. All the witnesses testified that Johnson's clothes were soiled with dirt or a substance they had assumed to be red clay. The witnesses gave similar descriptions of his clothing; in court, two witnesses who sat near Johnson on the bus identified his jacket, boots and distinctive turquoise ring.
The police determined that Ms. Sizemore was murdered in a vacant lot near Sixteenth Avenue in west Albany .... The vacant lot is about two blocks from Fundamentals and about half a block from the house where Johnson lived with his mother.
A friend of Johnson testified that after he called her early on March 24, she picked him up at his house at 9:30 a.m. and took him to her home, where he slept on her couch for several hours. Johnson then told her he wanted to take a bus to Tennessee and that he needed her to go to the Monkey Palace to pick up some money he was owed. At his request, she dropped him off near a church while she went to get the money. The police were waiting for Johnson to show up, and they returned with the friend and arrested Johnson. Before they told him why they were arresting him, he blurted, “I'm Marcus Ray Johnson. I'm the person you're looking for.”
DNA testing revealed the presence of the victim's blood on Johnson's leather jacket. Johnson had a pocketknife that was consistent with the knife wounds on the victim's body. He had scratches on his hands, arms, and neck. In a statement, Johnson said he and the victim had sex in the vacant lot and he “kind of lost it.” According to Johnson, the victim became angry because he did not want to “snuggle” after sex and he punched her in the face. He stated he “hit her hard” and then walked away, and he does not remember anything else until he woke up after daybreak in his front yard. He said, “I didn't kill her intentionally if I did kill her.”
Id. at 225-26.
The condition of Sizemore's body evidenced Johnson's extreme brutality during her murder. Johnson sexually assaulted Sizemore with the limb of a pecan tree, which was shoved into her vagina until it tore through the back wall of her vagina and into her rectum. Sizemore was alive during the sexual assault.
Johnson also cut and stabbed Sizemore 41 times with a small, dull knife. Sizemore had grip marks (round or oval bruises caused when a person is grabbed tightly) on her upper extremities, knees, thighs, ankles, and the inside of her arms. She had severe bruising, abrasions, and other evidence of blunt trauma about her body, especially her face, head, arms, ankles, and feet. Sizemore was alive during this attack.
After mutilating and killing Sizemore, Johnson dragged her body from the attack area back to her car. Sizemore's body was discovered clothed, with her shirt pulled up and tied in a knot just below the breast
area. Her pants were around her legs and her bra was tied in a knot around her right thigh and protruded from the pants. Dirt and sand drag marks were found on the side of her body and grass was found attached to her face. Johnson had dragged Sizemore's body from the attack area back to her car by using the knotted loops of her shirt and bra as handles.
B. Appointment of Counsel
The state trial court provided Johnson with two exceptionally well-qualified criminal defense attorneys. Four days after Johnson's arrest, the state trial court appointed experienced criminal trial attorney Ronnie Joe Lane. 1 Lane had practiced criminal law for almost 20 years and handled hundreds of criminal cases, including about 40 murder trials. In all four of his previous capital cases, Lane secured his clients life sentences. Lane tried two death penalty cases to life sentences and pled two other capital cases to life sentences.
On August 15, 1994, the State announced its intent to seek the death penalty. Johnson did not go to trial until almost four years later, in March 1998. In June 1997, at Lane's request, the state trial court appointed attorney Tony Jones to assist Lane. 2 Jones had practiced criminal law for 14 years and had handled numerous felony cases, including at least two murder cases. Lane and Jones served as co-counsel at trial.
C. Johnson's Transfer to Miller County Jail
Following his arrest, Johnson was housed in the overcrowded Dougherty County jail in Albany, Georgia. 3 On June 5, 1994, Johnson was taken to a hospital for treatment after other inmates beat him. 4 Lane knew that Johnson received other beatings from jail inmates. 5 Lane saw Johnson had suffered injuries, but they were “mainly bruises and lacerations, ... not anything that would have required him to be hospitalized.” Johnson gave Lane handwritten threatening notes that Johnson received in the Dougherty County jail. Lane “knew it wasn't a healthy situation for [Johnson] to be there.”
Attorney Lane met with Johnson at the jail on June 6, 1994, to discuss the jail conditions and his beating. Lane later met with the sheriffs of Dougherty County and nearby Miller County to discuss transferring Johnson to the Miller County jail. Lane told the Dougherty County sheriff about Johnson's abuse in the Dougherty County jail. Lane also preferred that Johnson be housed in the Miller County
jail because it was closer to Lane's office in Donalsonville, Georgia.
After four months in the Dougherty County jail and because of Lane's request, Johnson was transferred to the Miller County jail in August 1994.
D. Johnson's Escape
The Miller County jail was a small facility, and on the evening of October 2, 1994, the only deputy on duty was 76-year-old Brooks Sheffield. That evening, Johnson asked Deputy Sheffield if he could use the jail telephone. When Sheffield brought Johnson to the telephone, Johnson grabbed Sheffield's gun, struck Sheffield in the head with the butt of the gun, and escaped the jail. The next night, Johnson was found and taken back into custody.
Sheffield's head injury required 21 staples to close, plus follow-up care. X-rays showed no skull fracture or intracranial bleeding. There were no brain contusions. The CT scan “was deemed normal for a patient in Mr. Sheffield's age range.” About seven months later, on April 27, 1995, Sheffield suffered a stroke. He died in June 1995.
Upon Johnson's recapture, he was returned to the Miller County jail, where he remained until mid-November 1994. Johnson was then transferred back to a jail annex in Dougherty County, which was a separate, renovated building across the street from the old jail's cell blocks where Johnson was before. In January 1995, the new Dougherty County jail opened and Johnson was moved...
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