Johnston v. Roper, Case No. 4:09CV2080 JCH
| Decision Date | 17 March 2011 |
| Docket Number | Case No. 4:09CV2080 JCH |
| Parties | DAVID A. JOHNSTON, Petitioner, v. DON ROPER, Respondent. |
| Court | U.S. District Court — Eastern District of Missouri |
This matter is before the Court on Petitioner David A. Johnston's Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. §2254, filed December 18, 2009 (Doc. No. 1 ("Motion")) and Motion to Remand and Suggestion in Support Thereof (Doc. No. 12 ("Motion to Remand")). Because this Court has determined that Johnston's claims are inadequate on their face and the record affirmatively refutes the factual assertions upon which Johnston's claims are based, this Court decides this matter without an evidentiary hearing.1
The Missouri Court of Appeals provided a detailed description of the background facts of Johnston's offenses: 2A neighbor of [Johnston], Hubert Shoop (Mr. Shoop), stated that on May 19, 2004, he had heard some yelling coming from the direction of [Johnston's] trailer that sounded like kids playing, and he looked over to see a woman rolling around on the ground outside the trailer, and a man come out of the trailer and then go back into the trailer with the woman. Carlene Shoop (Mrs. Shoop) said she saw smoke coming out of the door of the trailer.
On that same day, [Johnston] and his live-in girlfriend, Crystal Smallwood (Smallwood), arrived at the home of Donna White (White). Smallwood was yelling to be let in the residence because she needed to cut her clothes off and get in the shower. White immediately noticed that something was wrong with Smallwood because "[h]er face was kind of dark like it had been char[re]d like a fire." White noticed that Smallwood had several burns over parts of her body, some of them severe. White told Smallwood that she did not know how to help her treat her burns, but Smallwood told White that she knew how to treat them and instructed White on everything she would need. White and another woman, Morgan McKenna, both advised Smallwood that she needed to go to the hospital, but Smallwood refused to do so.
Initially, Smallwood told White that she had been burned when a camp stove blew up at a campfire at Siloam Springs. Later, however, Smallwood told White that what had actually happened was that she was lighting a cigarette in the trailer she shared with [Johnston] and some fumes in the small area ignited. Smallwood said that she ran out of the door of the trailer, cutting her arm on the way out, then rolled around in the grass trying to put the fire out. Smallwood stated that after she had extinguished the fire on her clothing, she started to go back in the trailer when [Johnston] "threw some juice of some kind" that landed on her and caused her to ignite again. Smallwood said she again rolled around in the grass and [Johnston] sprayed her with a fire extinguisher.
Later that evening, Smallwood insisted to [Johnston] that he go get her something that "she had to have." [Johnston] reluctantly left, and returned in the amount of time it would have taken to go back to his trailer and return to White's home. When [Johnston] returned, he brought with him some coffee filters that were burned around the edges with methamphetamine on them. Smallwood then seemed to calm down.
Later, [Johnston] told White the same story about how Smallwood had been burned as Smallwood had told White. [Johnston] did not mention what they had been doing prior to the explosion, but White suspected that methamphetamine was involved.
White continued to monitor Smallwood and requested several times that she go to the hospital, but Smallwood refused, saying "she didn't want to be arrested at that point." The next day, Smallwood's condition appeared to White to deteriorate. When White told Smallwood that she looked worse, Smallwood told her "I've been burned three times before, " and "I know what to do, " and
At one point, White could not get Smallwood to wake up and she voiced her concerns to [Johnston]. [Johnston] told her not to worry about it because [w]hen she's been tweaking for a while she sleeps really hard and a long time." White explained that "tweaking" meant when a person had "been up for several days doing meth." When Smallwood was awake, "she kept insisting that she'd been burned before like that."
On the afternoon of May 20th, Smallwood was mumbling and unable to communicate. White called a friend to help her, telling her that Smallwood was burned from "the fumes from the chemicals used to manufacture methamphetamine and the ignition of her lighter." White told [Johnston] that she intended to call the ambulance, and [Johnston] responded by saying "no, don't call the hospital, " and "take her and put her under a tree or something... because if you call the ambulance from your home it's going to come back on me once it gets to you." White refused [Johnston's] suggestion and called for an ambulance. [Johnston] then told White, "I'm getting the f— out of here, " and he left. Smallwood was taken to the hospital, where she died shortly thereafter from organ failure caused by her severe burns. After Smallwood's death, the police attempted to locate [Johnston], but did not find him until June 6, 2004, after receiving information that [Johnston] had been seen at Mark Twain Park. [Johnston] was discovered camping, and it appeared that he had been camping for quite some time.
The police began their investigation at the trailer home of [Johnston] and Smallwood, located on the property of [Johnston's] father, Selmer Johnston [...]. [Johnston] and Smallwood's trailer was located directly behind a two-car garage on the property, which was a few feet to the west of [Selmer] Johnston's house. There was also a utility shed located on the property approximately twenty feet behind the house. [Selmer] Johnston gave the police his consent to search the property.
The search of the property revealed the following evidence. In the utility shed, there was a large garbage bag containing burned, broken glass, a charred or burned jar with methamphetamine liquid in it, a burned coffee filter, and a Bud Light bottle with an acidic odor and some type of tubing inside it. The police also found a drawer or dresser in the utility shed containing some women's clothing. After the police recovered those items, [Selmer] Johnston withdrew his consent to search the property, and the police obtained a search warrant for all of the buildings located on the property, including the trailer.
In the garage, the police found a stove[,] containing the casing of a lithium battery and a bag with the corner cut out of it. In the trailer, the police found several receipts. The first, dated May 7, 2004, showed a purchase of a four-pack of lithium batteries. The second, dated April 25, 2004, showed the purchase of small tubing and starter fluid. The third, dated May 15, 2004, showed the purchase of four lithium batteries. The fourth, dated May 13, 2004, showed the purchase of two packages of pseudoephedrine tablets. The fifth, dated May 13, 2004, showed, the purchase of four lithium batteries. The sixth, dated May 16, 2004, showed the purchase of two cans of starting fluid and more batteries.
Inside the trailer, the police located rubber tubing, a marijuana bong, two chemist beakers, a glass test tube that had been modified into a smoking pipe with burned methamphetamine reside inside it, small pieces of curved glass, one piece of burned heavy glass consistent with the burned Mason jar found in the utility shed, and two newspaper articles related to people who had been arrested in the area. There was also a tablecloth on the table, with two-thirds of it cut away by a sharp object, like a knife. A piece of tablecloth, which matched that found in the trailer, was located in a trash barrel at the south end of the property.
Smallwood's autopsy revealed small fragments of glass embedded in her skin that were indicative of her being very near to an explosion. Methamphetamine was found in her urine, but not in her blood, meaning Smallwood had consumed methamphetamine between twelve and twenty-four hours prior to her death.
At trial, the fire investigator, Ronald McAfee (McAfee), testified that whatever had burned the steps leading into the trailer had to have been an ignitable liquid. McAfee also testified that the fire that occurred in the trailer was "probably a vapor fire of some type." White admitted that she frequently visited [Johnston] and Smallwood at their trailer to use methamphetamine, which was usually provided by [Johnston] and Smallwood.
The jury found [Johnston] guilty of manufacturing a controlled substance and felony murder. The court sentenced [Johnston] as a persistent offender to twenty-five years on each count with the sentences to run consecutively.
Respondent's Exhibit E ( ), pp. 2-6). On April 11, 2006, the Missouri Court of Appeals affirmed Johnston's convictions on direct appeal. Id^, p. 2. On March 17, 2009, the Missouri Court of Appeals also affirmed the denial of Johnston's motion for post-conviction relief. Respondent's Exhibit I ( ).
On December 18, 2009, Johnston filed this Motion seeking relief based upon the following grounds:
(1) Johnston's direct-appeal counsel was ineffective for failing to argue that the trial court had erred in denying his motion to suppress items seized by the police; (2) his direct-appeal counsel was ineffective for failing to argue that the trial court had erred in admitting photographs of the victim into evidence;
(3) the State's evidence was insufficient to sustain his conviction for manufacturing methamphetamine; and
(4) the State's evidence was insufficient to sustain his conviction for felony murder.
Pursuant to 28 U.S.C. § 2254, a district court "shall entertain an application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State...
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