Johnston v. Luebbers, 01-1352.

• Decision Date: 01 May 2002
• Docket Number: No. 01-1352.,01-1352.
• Citation: 288 F.3d 1048
• Parties: Timothy JOHNSTON, Appellant, v. Al LUEBBERS, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

288 F.3d 1048

Timothy JOHNSTON, Appellant, v. Al LUEBBERS, Appellee.

No. 01-1352.

United States Court of Appeals, Eighth Circuit.

Submitted: September 10, 2001.

Filed: May 1, 2002.

COPYRIGHT MATERIAL OMITTED

Michael J. Gorla, St. Louis, MO, argued (Christopher E. McGraugh, on the brief), for appellant.

Frank A. Jung, Asst. Atty. Gen., Jefferson City, MO, argued, for appellee.

Before BOWMAN, HEANEY, and BYE, Circuit Judges.

BOWMAN, Circuit Judge.

Timothy Johnston appeals from the District Court's¹ denial of his 28 U.S.C. § 2254 petition for a writ of habeas corpus. We affirm.

I.

Johnston was convicted of first-degree murder and armed criminal action in Missouri state court in 1991 for the beating death of his wife. A jury sentenced Johnston to death. The facts underlying Johnston's conviction are discussed thoroughly by the Missouri Supreme Court, see State v. Johnston, 957 S.W.2d 734 (Mo.1997) (en banc), cert. denied, 522 U.S. 1150, 118 S.Ct. 1171, 140 L.Ed.2d 181 (1998), and we see no need to restate those facts here. After the jury convicted Johnston and sentenced him to death, he took a timely direct appeal to the Missouri Supreme Court and also, pursuant to Missouri Supreme Court Rule 29.15, filed a pro se motion for post-conviction relief in the appropriate state trial court. Counsel was appointed to represent Johnston in the Rule 29.15 proceedings, and that counsel filed an amended Rule 29.15 motion. The post-conviction court denied Johnston's motion in September 1996, and shortly thereafter Johnston filed his consolidated appeal to the Missouri Supreme Court. In its ruling on Johnston's consolidated appeal, the Missouri Supreme Court affirmed Johnston's conviction and sentence as well as the motion court's denial of post-conviction relief. Johnston next sought habeas corpus relief in the District Court. The District Court denied relief, and this Court granted Johnston's application for a certificate of appealability with respect to seven issues. In his brief, Johnston addresses all of these issues.

Our consideration of Johnston's appeal is governed by 28 U.S.C. § 2254 (1994 & Supp.1998), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-132, § 104, 110 Stat. 1214, 1218-19. We cannot grant habeas relief on any claim "adjudicated on the merits in State court proceedings unless the adjudication of the claim... 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 "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 state court decision is "contrary to" clearly established federal law if the rule applied by the state court directly contradicts Supreme Court precedent or if the state court has reached a result opposite to a result reached by the Supreme Court on "materially indistinguishable" facts. Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (concurring opinion of O'Connor, J., for the Court). We may not grant habeas relief if the state court's judgment is not unreasonable, even if, in our "independent judgment," the state court's application of the law might be erroneous. Id. at 411, 120 S.Ct. 1495.

Although AEDPA directs our review of state court decisions, we apply our usual standards of review to the decision of the District Court, reviewing factual findings for clear error and questions of law or mixed questions of law and fact de novo. See Kinder v. Bowersox, 272 F.3d 532, 538 (8th Cir.2001).

II.

Johnston argued to the Missouri Supreme Court that the state trial court violated his due process rights under the Fourteenth Amendment when it failed to clearly and accurately instruct the jury in response to a question sent out by the jury during its deliberations. Johnston argues to this Court that the Missouri Supreme Court's conclusion to the contrary is an unreasonable application of clearly established federal law because the trial court's response created a reasonable likelihood that the jury's guilty verdict was reached without a unanimous finding of the existence of each element of the first-degree murder charge.

At the close of the evidence presented during the guilt phase of Johnston's trial, the jury was instructed that in order to find Johnston guilty of first-degree murder it must find that Johnston caused the death of his wife by striking her, that Johnston was aware that his conduct was causing his wife's death, and that Johnston "did so after deliberation." The jury was instructed that "unless you find and believe from the evidence beyond a reasonable doubt each and all of these propositions, you must find the defendant not guilty of murder in the first degree." The jury instructions also directed the jury that its verdict, "whether guilty or not guilty, must be agreed to by each juror."

During its guilt-phase deliberations, the jury sent a note to the judge which asked, "Is the jury required by law to be unanimous on each element contained in the count in order to be unanimous on that count?" Trial Tr. vol. V at 1646. Johnston requested that the judge simply respond "Yes." The court suggested responding, "yes, please refer to the instructions." Id. at 1648. The State objected to both responses. The court eventually responded, over Johnston's objections, by instructing the jury "to be guided by the instructions as given." Id. at 1653. Two and a half hours later, the jury returned a verdict of guilty of first-degree murder.

The Missouri Supreme Court rejected Johnston's argument that the trial court violated his due process rights in failing to explain further the jury's instructions. The court concluded:

We do not find that the jury could have been misled to the defendant's prejudice by this answer, as it merely suggested to the jury that they had their answer if they would consider the correct, clear and unambiguous instructions already given.

Johnston, 957 S.W.2d at 752. The District Court similarly concluded that Johnston had failed to show how the trial court's instructions were ambiguous. Johnston v. Bowersox, 119 F.Supp.2d 971, 986 (E.D.Mo.2000).

Johnston argues that the Missouri Supreme Court misapplied clearly established federal law in rejecting his challenge to the trial court's handling of the jury's question.² The only appropriate answer to the jury's question, Johnston alleges, was the answer he suggested. Citing Boyde v. California, 494 U.S. 370, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990), and Bollenbach v. United States, 326 U.S. 607, 66 S.Ct. 402, 90 L.Ed. 350 (1946), Johnston argues that he is entitled to habeas relief because the trial judge's answer to the jury question created a "reasonable likelihood" that the jury misapplied the law. The Supreme Court's reasoning in Bollenbach does not provide any relief to Johnston because the instructions given by the trial court in Johnston's case do not affirmatively misstate the law, as did the instruction given by the trial court in Bollenbach. Johnston cites the correct standard of review, set out in Boyde, for cases where a habeas petitioner alleges that an "instruction is ambiguous and therefore subject to an erroneous interpretation": the defendant must show that the jury instruction created "a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence." Boyde, 494 U.S. at 380, 110 S.Ct. 1190. The facts of Boyde also do not support Johnston's claim because the Supreme Court concluded that the challenged instruction was not susceptible to an erroneous interpretation. Like the District Court, we too conclude that Johnston has not identified any other applicable "clearly established federal law" that would show that the Missouri Supreme Court unreasonably determined that the guilt-phase instructions given by the trial court (including the response to the jury question) were not, on their face, ambiguous and therefore were not subject to an erroneous interpretation by the jury and did not prevent the jury from considering constitutionally relevant evidence. Johnston's reliance on the mere "fact of the [jury's] question and the potential unhelpfulness of the Court's response" are not sufficient to meet the AEDPA standard for relief on this claim. Johnston, 119 F.Supp.2d at 986.

Johnston attempts to bolster his argument that the state supreme court misapplied Boyde by relying on Weeks v. Angelone, 528 U.S. 225, 120 S.Ct. 727, 145 L.Ed.2d 727 (2000). In Weeks, the trial judge responded to a jury question by directing the jury to a particular paragraph within an instruction. Johnston cites Weeks to argue that the trial court was constitutionally required to answer the jury's question as Johnston suggested. A careful reading of Weeks reveals that it stands for a different proposition: it is not constitutional error for a judge to direct the jury to a specific portion of an instruction. Weeks does not, notwithstanding Johnston's arguments, stand for the proposition that it is constitutional error to fail to point out a specific instruction. Johnston's reliance on Weeks therefore does not demonstrate that the Missouri Supreme Court's decision was contrary to or an unreasonable application of clearly established federal law.³

Because the Missouri Supreme Court's determination that the jury instructions were not ambiguous was not contrary to or an unreasonable application of clearly established federal law, Johnston has failed to establish that he is entitled to habeas relief on this ground.

III.

Johnston raises three instances of ineffective assistance of trial counsel in this appeal. The Missouri Supreme Court applied Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984),...