Johnson v. Zatecky

• Decision Date: 06 February 2015
• Docket Number: 1:13-cv-1242-SEB-TAB
• Parties: HERMAN P. JOHNSON, Petitioner, v. DUSHAN ZATECKY, Respondent.
• Court: U.S. District Court — Southern District of Indiana

HERMAN P. JOHNSON, Petitioner, v. DUSHAN ZATECKY, Respondent.

1:13-cv-1242-SEB-TAB

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION

February 6, 2015

Entry Discussing Petition for Writ of Habeas Corpus and Denying Certificate of Appealability

A jury convicted Herman Johnson in 2009 of Class A child molesting and of Class C child molesting. The same jury returned a not guilty verdict as to a third charge, criminal confinement. The victim of his crimes is his niece, who at all relevant times was a minor. Johnson is now serving the executed portion of the 45-year sentence imposed for these offenses. He now seeks a writ of habeas corpus, contending that his convictions are tainted by constitutional error.

Having considered the pleadings and the expanded record, and being duly advised, the Court finds for the reasons explained in this Entry that Johnson's habeas petition must be denied. The Court also finds that no certificate of appealability should issue.

The Petition for Writ of Habeas Corpus

I. Background

Johnson's convictions were affirmed on appeal in Johnson v. State, 925 N.E.2d 509 (Ind. Ct.App. Apr. 23, 2010)(Johnson I), wherein his challenges to the sufficiency of the evidence and argument based on the trial court's rejection of his challenge based on Batson v. Kentucky, 476 U.S. 79, 89 (1986). The trial court then denied Johnson's petition for post-conviction relief. The denial of post-conviction relief was affirmed on appeal in Johnson v. State, 985 N.E.2d 1149 (Ind.Ct.App. Apr. 16, 2013)(Johnson II).

An Amended Information was filed in Johnson's case on June 22, 2009. The language of the charges on which Johnson was found guilty was accurately described in Johnson II:

With respect to child molesting as a class A felony, Count I alleged that Johnson "being at least twenty-one (21) years of age, did perform or submit to deviate sexual conduct, an act involving a sex organ, that is: vagina of [E.B.] and the mouth of [Johnson], with [E.B.], a child who was then under the age of fourteen (14) years, that is: ten (10) years of age." Appellant's Appendix at 37. Ind.Code § 35-42-4-3 provides that "[a] person who, with a child under fourteen (14) years of age, performs or submits to sexual intercourse or deviate sexual conduct commits child molesting, a Class B felony. However, the offense is a Class A felony if . . . it is committed by a person at least twenty-one (21) years of age." With respect to child molesting as a class C felony, Count II alleged that Johnson "did perform or submit to any fondling or touching with [E.B.], a child who was then under the age of fourteen (14) years, that is: ten (10) years of age, with intent to arouse or satisfy the sexual desires of [E.B.] and/or the sexual desires of [Johnson]." Id. at 37-38. Ind.Code § 35-42-4-3 provides that "[a] person who, with a child under fourteen (14) years of age, performs or submits to any fondling or touching, of either the child or the older person, with intent to arouse or to satisfy the sexual desires of either the child or the older person, commits child molesting, a Class C felony."

Johnson II, at *5 n.4.

It is noted in Jones v. Butler, 2015 WL 430436, at *1 (7th Cir. Feb. 3, 2015), that "[i]n § 2254 proceedings, federal courts are foreclosed from fact-finding. We therefore defer to the findings of the [state] court, which have not been challenged and are presumed to be correct unless rebutted by clear and convincing evidence." (citing 28 U.S.C. § 2254(e)(1) and Harris v. Thompson, 698 F.3d 609, 613 (7th Cir. 2012)).

Johnson was forty-five years old and lived in Indianapolis. One day he went to the movies with his ten-year-old niece E.B. and his girlfriend Wanda. Afterward the three returned to Johnson's house. E.B. and Johnson began playing chess. Wanda left after ten or fifteen minutes. E.B. and Johnson then decided to play a card game. E.B. went to the back room to look for a deck of cards, and Johnson followed her.

While they were in the back room, Johnson lifted E.B. from behind, pulled up her shirt and bra, and touched her breast. Wanda soon returned. Johnson instructed E.B. not to tell anyone that he had picked her up. E.B. came to the front of the house to see Wanda. E.B. did not tell her what had happened. Wanda left again five minutes later.

E.B. continued to look for cards. She could not find any and returned to the back room. Johnson picked E.B. up again and touched her vagina over her clothing. E.B. then went to another room to resume her search. She again found no cards and returned to the back room. Johnson came in and placed E.B. on the bed. Johnson pulled down her pants and underwear, inserted his finger into her vagina, and moved his finger "[i]n and out." Tr. p. 26. E.B. told Johnson that he was hurting her, but Johnson said he did not care. E .B. started kicking. Johnson pinned her down and began licking the inside of her vagina.

Soon E.B.'s mom called, and E.B. spoke to her briefly on the phone. At some point E.B. and Johnson left and went to Safeway. They also stopped at a laundromat so E.B. could go to the bathroom. Johnson gave E.B. his cell phone before she went in. E.B. called her mom while in the restroom and told her what Johnson had done. E .B. and Johnson then returned to the house, and E.B.'s mother was there when they arrived. E.B. left with her mother. They picked up E.B.'s father, and E.B. explained to her parents what had happened. Authorities were ultimately notified.

Johnson I, at *1.

In Johnson II, Johnson argued that he had been denied the effective assistance of counsel at trial, presented various free-standing claims, and renewed the claims which had been rejected in Johnson I.

Johnson's petition for writ of habeas corpus presents the following claims:

(1) he was denied the effective assistance of counsel at trial;

(2) there was insufficient evidence to support the verdicts;

(3) he was denied his right to a fast and speedy trial;

(4) the prosecutor used peremptory challenges in a racially discriminatory manner;

(5) there was sentencing error;

(6) there is newly discovered evidence;

(7) the State committed error in responding to the petition for post-conviction relief;

(8) he was convicted of an uncharged offense;

(9) witness statements and testimony were inconsistent; and

(10) there was no intent alleged in the charging instrument.

II. Applicable Standards

A federal court may grant habeas relief only if the petitioner demonstrates that he is in custody "in violation of the Constitution or laws . . . of the United States." 28 U.S.C. § 2254(a) (1996).

The scope of the Great Writ is limited because a viable habeas claim pursuant to § 2254(a) necessarily precludes a claim which is not based on alleged noncompliance with federal law. See Wilson v. Corcoran, 131 S. Ct. 13, 16 (2010)("But it is only noncompliance with federal law that renders a State's criminal judgment susceptible to collateral attack in the federal courts."). As the Supreme Court has clearly stated, "federal habeas corpus relief does not lie for errors of state law." Swarthout v. Cooke, 131 S. Ct. 859, 861 (2011) (citing Estelle v. McGuire, 502 U.S. 62, 67 (1991)). ATo say that a petitioner's claim is not cognizable on habeas review is thus another way of saying that his claim >presents no federal issue at all.=@ Perruquet v. Briley, 390 F.3d 505, 511 (7th Cir. 2004) (quoting Bates v. McCaughtry, 934 F.2d 99, 101 (7th Cir. 1991)).

Johnson filed his 28 U.S.C. § 2254 petition after the effective date of the Antiterrorism and Effective Death Penalty Act (AEDPA). His petition, therefore, is subject to the AEDPA. See Lindh v. Murphy, 521 U.S. 320, 336 (1997).

Federal habeas relief is barred for any claim adjudicated on the merits in state court "unless one of the exceptions listed in 28 U.S.C. § 2254(d) obtains." Premo v. Moore, 131 S. Ct. 733, 739 (2011). Under the current regime governing federal habeas corpus for state prison inmates, the inmate must show, so far as bears on this case, that the state court which convicted him unreasonably applied a federal doctrine declared by the United States Supreme Court." Redmond v. Kingston, 240 F.3d 590 (7th Cir. 2001) (citing 28 U.S.C. § 2254(d)(1); Williams v. Taylor, 529 U.S. 362 (2000); Morgan v. Krenke, 232 F.3d 562 (7th Cir. 2000). Thus, "under AEDPA, federalcourts do not independently analyze the petitioner's claims; federal courts are limited to reviewing the relevant state court ruling on the claims." Rever v. Acevedo, 590 F.3d 533, 536 (7th Cir. 2010).

"A state-court decision involves an unreasonable application of this Court's clearly established precedents if the state court applies this Court's precedents to the facts in an objectively unreasonable manner." Brown v. Payton, 544 U.S. 131, 141 (2005) (internal citations omitted). "The habeas applicant has the burden of proof to show that the application of federal law was unreasonable." Harding v. Sternes, 380 F.3d 1034, 1043 (7th Cir. 2004) (citing Woodford v. Visciotti, 537 U.S. 19, 25 (2002)).

In addition to the foregoing substantive standard, claims which Johnson presents here but which were not properly preserved in the Indiana state courts have been procedurally defaulted. Resnover v. Pearson, 965 F.2d 1453, 1458 (7th Cir. 1992)(procedural default "occurs when a claim could have been but was not presented to the state court and cannot, at the time that the federal court reviews the habeas petition, be presented to the state court"), cert. denied, 508 U.S. 962 (1993). A habeas petitioner may overcome procedural default by demonstrating cause for the default and actual prejudice or by showing that the habeas court's failure to consider the claim would result in a fundamental miscarriage of justice. See House v. Bell, 547 U.S. 518, 536 (2006); Coleman v. Thompson, 501 U.S. 722, 750 (1991). Cause exists where "some objective factor external to the defense impeded [the petitioner's] efforts to comply with the State's...