Opinion
Civil Action No. 4:00-CV-1709-Y.
March 24, 2005
MEMORANDUM OPINION AND ORDER GRANTING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner Eddie C. Johnson ("Johnson"), sentenced to death for capital murder, petitions the Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, contending that his conviction and sentence are unconstitutional in several respects. Respondent Douglas Dretke ("the State") filed a brief in response. The Court grants in part Johnson's petition for a writ of habeas corpus.
I History of the Case
A jury convicted Johnson of the capital murder of Jeffrey Doolittle, and his punishment was assessed at death by lethal injection. State v. Johnson, Cause No. 0614128a (Criminal District Court Number 4 of Tarrant County, Tex. July 30, 1997). Johnson appealed to the Texas Court of Criminal Appeals, which affirmed the conviction in an unpublished opinion. Johnson v. State, No. 72,946 (Tex.Crim.App. June 21, 2000).
Johnson filed a state application for writ of habeas corpus on January 4, 1999. On May 12, 1999, the state court considering Johnson's habeas application issued an order adopting the State's findings of fact and conclusions of law and recommending that relief be denied based on the pleadings, the exhibits filed by the parties, and the court record. (State Habeas Transcript, p. 117). The Court of Criminal Appeals denied relief in an unpublished written order adopting the trial court's findings of fact and conclusions of law. Ex parte Johnson, No. 41,659-01 (Tex.Crim.App. October 4, 2000). Johnson filed his initial federal petition for writ of habeas corpus on March 29, 2002, his first amended petition on July 8, 2002, and a supplement to this petition on August 14, 2002. The State filed an answer on November 27, 2002, and furnished the state-court records. Johnson filed a reply brief on December 12, 2002.
Briefly recounted, the evidence presented by the State at trial established that in the late evening of March 6, 1996, Johnson, Anthony "Tushay" Williams, and William "Reco" Jones were driving around Fort Worth looking for people to rob in the driveways of their homes (R. 27:13). Around 9:00 p.m., Johnson and Williams exited their car and attempted to rob Guadalupe Arriola at gunpoint while she sat in her van waiting for her young son to open the garage door of her house. Arriola was not robbed, but a shot was fired into her van. (R. 26:23-7; R. 27:59-60). Later that same evening, Johnson attempted to rob Jeffrey Doolittle at gunpoint. When Doolittle threw a plastic bag he was carrying at Johnson and ran towards his garage, Johnson fired his gun at Doolittle several times, hitting Doolittle on the left side and killing him. (R. 27:17, 19, 57, 136-43).
II Standard of Review
The pertinent terms of the Antiterrorism and Effective Death Penalty Act of 1996 (the AEDPA), 28 U.S.C. § 2254, provide:
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the 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 a State court proceeding.28 U.S.C. § 2254(d) (2000).
Section 2254(d)(1) concerns pure questions of law as well as mixed questions of law and fact. Martin v. Cain, 246 F.3d 471, 475 (5th Cir. 2001). Under the "contrary to" clause, a federal habeas court may grant the writ of habeas corpus if the state court arrives at a conclusion opposite to that reached by the United States Supreme Court on a question of law or if the state court decides a case differently from the United States Supreme Court on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 412-3 (2000). With respect to the "unreasonable application" clause, a federal court may grant a writ of habeas corpus if the state court identifies the correct governing legal principle from the United States Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case. Williams, 529 U.S. at 413. Under Williams, a state court unreasonably applies Supreme Court precedent if it "unreasonably extends a legal precedent from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." Williams, 529 U.S. at 407.
Section 2254(d)(2) concerns questions of fact. Moore v. Johnson, 225 F.3d 495 (5th Cir. 2000). Under § 2254(d)(2), federal courts "give deference to the state court's findings unless they were "based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." Chambers v. Johnson, 218 F.3d 360, 363 (5th Cir. 2000) (as modified on denial of rehearing). The resolution of factual issues by the state court is presumptively correct and will not be disturbed unless the state prisoner rebuts the presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
This statute applies to all federal habeas-corpus petitions which, as with the instant case, were filed after April 24, 1996, provided that they were adjudicated on the merits in state court. Lindh v. Murphy, 521 U.S. 320, 326 (1997). Resolution on the merits in the habeas-corpus context is a term of art that refers to the state court's disposition of the case on substantive rather than procedural grounds. Green v. Johnson, 116 F.3d 1115, 1121 (5th Cir. 1997).
III Issues Presented
Johnson alleges the following eight claims in nine grounds for relief:
A. Johnson's trial attorneys provided ineffective assistance of counsel in violation of the Sixth Amendment because they failed to question potential jurors during voir dire about the meaning of a life sentence and failed to argue during their closing statements at the punishment phase of the trial that, if given a life sentence, Johnson would not be eligible for parole for forty years (ground one);
B. Johnson's trial attorneys provided ineffective assistance of counsel in violation of the Sixth Amendment because they failed to investigate, develop, and present relevant mitigating evidence at the punishment phase of the trial (ground two);
C. Johnson's trial attorney Ray Hall provided ineffective assistance of counsel in violation of the Sixth Amendment because he did not disqualify himself due to a conflict of interest that was not effectively waived by Johnson (ground three);
D. Johnson's rights under the Sixth and Fourteenth Amendments were violated because the trial court admitted into evidence statements elicited from Johnson by an undisclosed informant for the State (ground four);
E. Johnson's due-process rights under the Fourteenth Amendment were violated because the State introduced at the punishment phase of the trial evidence of drug trafficking without proof that Johnson was involved (ground five);
F. Johnson's execution would violate the International Covenant on Civil and Political Rights and the Eighth Amendment because he was a juvenile when he committed capital murder (grounds six and seven);
G. Johnson's rights under the Fifth, Sixth and Fourteenth Amendments have been violated because the punishment special issues were not pled in the indictment and proven beyond a reasonable doubt, as required by Ring v. Arizona (ground nine); and
H. The cumulative effect of trial errors resulted in an unfair trial and a denial of due process in violation of the Fourteenth Amendment (ground eight).
Johnson also requests an evidentiary hearing in this Court.
IV Discussion of Claims
Eighth Amendment/International Law Claims
In his sixth and seventh grounds for relief, Johnson asserts that both the Eighth Amendment and international law prohibit his execution. Johnson asserts that, because he was convicted for a murder committed when he was seventeen years old, it would be both cruel and unusual punishment and a violation of the International Covenant on Civil and Political Rights (ICCCR) to execute him.
Applicable Law
Johnson's Eighth Amendment claim is controlled by the Supreme Court's recent decision in Roper v. Simmons, No. 03-633, 2005 WL 464890 (U.S. Mo. March 1, 2005). The Missouri Supreme Court had invalidated Simmons's death sentence on Eighth Amendment grounds because Simmons was seventeen when he committed the capital murder for which he was convicted. In Simmons, the Supreme Court affirmed the lower court's decision. In doing so, the Supreme Court overturned its previous decision in Stanford v. Kentucky 492 U.S. 361 (1989). In Simmons, the Supreme Court specifically held that "the Eighth and Fourteenth Amendments forbid the imposition of the death penalty on offenders who were under the age of 18 when their crimes were committed." Id., slip op. at 25. In reaching this holding, the Court explained that juvenile offenders have diminished culpability as compared to adult offenders, due to a juvenile's susceptibility to immature and irresponsible behavior, his vulnerability to negative influences and outside pressures, and the fact that a juvenile's character is not as well-formed as that of an adult. Id., slip op. at 15-16. Accordingly that Court concluded that the penalogical justifications for the death penalty of retribution and deterrence apply less to juveniles given their diminished culpability. Id., slip op. at 17.
Analysis
The State does not dispute the fact that Johnson was seventeen years old when he committed the capital murder for which he was convicted. (Answer at 99). The State does, however, advance three other arguments opposing the granting of relief on Eighth Amendment grounds. In its initial response, the State first contends that this claim is procedurally barred because Johnson failed to raise the issue at the state level and because Johnson has failed to establish either cause and prejudice for failing to raise this issue at the state level or that a fundamental miscarriage of justice would result were this Court not to consider this claim. See Coleman v. Thompson, 501 U.S. 722, 735 (1991), Murray v. Carrier, 477 U.S. 478, 496 (1986).
Johnson does not address this argument made by the State, but the record before this Court reflects that Johnson did not raise this argument at the state level. The State argues that Johnson has not established cause for failing to raise this claim earlier because, although cause may be established if it is shown that the legal basis for a claim was not reasonably available to counsel, see McCleskey v. Zant, 499 U.S. 467, 493-94 (1991), a claim is reasonably available even if it was futile at the time, as this claim would have been at the time Johnson was convicted and his case was affirmed on appeal and state collateral review. See Engle v. Isaac, 456 U.S. 107, 129-30 (1982). The Supreme Court, however, has stated that a defendant meets the fundamental miscarriage of justice exception to a procedural bar if he has shown by clear and convincing evidence that, but for a constitutional violation, no reasonable juror would have found the defendant eligible for the death penalty. Sawyer v. Whitley, 505 U.S. 333, 350 (1992). Johnson is a member of a class that is now ineligible for the death penalty, that being the class of capital murderers who committed their murders when they were under eighteen years old. Accordingly, his status as a juvenile at the time of the murder renders the death penalty assessed against him a constitutional violation and, but for this violation, no rational juror following current law would have found him eligible for the death penalty. Johnson is not procedurally barred from raising this issue due to his failure to exhaust this claim in the state courts.
The State also contends in its original answer that Johnson's Eighth Amendment claim is barred under Teague v. Lane, 489 U.S. 288 (1989), because Johnson's case is on collateral appeal and therefore his conviction and sentence have become final. Under Teague, a new constitutional rule of criminal procedure announced by the Supreme Court will not be applicable to cases that have become final before the new rule is announced unless: 1) the rule places certain kinds of individual conduct beyond the power of the criminal law-making authority to proscribe; or 2) the rule is a watershed rule of criminal procedure. Id. at 311-13. Contrary to the State's argument, however, the Supreme Court recognized in Penry v. Lynaugh, 492 U.S. 302, 330 (1989) that, were that Court to hold a certain class of individuals beyond the State's power to punish by death, such a new rule would fall under the first exception to Teague. Indeed, in Bell v. Cockrell, 310 F.3d 330, 332 (5th Cir. 2002), citing this language from Penry, the Fifth Circuit held that the Supreme Court's holding in Atkins v. Virginia, 536 U.S. 304 (2002), which prohibits the execution of the mentally retarded, is an exception to Teague. Under this same logic, the Supreme Court's holding in Roper v. Simmons is also an exception to Teague's general rule. Johnson is not barred by Teague from raising this claim on collateral review.
Finally, in a subsequent pleading opposing Johnson's request that this Court stay writ proceedings until the Supreme Court ruled in Simmons, the State contends that this Court should dismiss Johnson's petition without prejudice so that the state courts have the initial opportunity to address any constitutional errors "with regard to Johnson's juvenile status." ( Respondent Dretke's Opposition to Petitioner's Request to Stay Writ Proceedings at 2). As support for this argument, the State cites Bell v. Cockrell, a Fifth Circuit case in which that Court remanded the case in order for the state to consider an Atkins claim. Bell, 310 F.3d at 333. As the Fifth Circuit made clear in its opinion in Bell, however, it remanded the case to the state because the Supreme Court did not provide any guidance in Atkins on how its ruling should be applied and because the Supreme Court specifically stated in its Atkins opinion that it was leaving to the states the task of developing an appropriate way of enforcing Atkins. Bell at 332, citing Atkins, 477 U.S. at 317. Unlike with Atkins, however, the Supreme Court's Simmons opinion does not contain any language leaving to the states the task of developing a method of enforcing the Simmons ruling. Undoubtedly this is because, unlike Atkins, it is not necessary that a state court determine whether a particular defendant falls under the purview of the Supreme Court decision in Simmons. A person must be classified as mentally retarded to be exempt from the death penalty under Atkins, a determination that must be made using standards which the Supreme Court left to the states to develop. With regard to the Supreme Court's decision in Simmons, however, a person was either under the age of eighteen when he committed the crime for which he received the death penalty or he was not. Because there is no dispute between the parties that Johnson was seventeen when he committed capital murder, he is exempt from being put to death for this crime. Accordingly, Johnson is entitled to relief on his Eighth Amendment claim, and his death sentence must be vacated by this Court. Conflict-of-Interest claim
Because this Court has ruled that Johnson is entitled to relief on his seventh ground for relief, this Court will not address Johnson's international law claim because it is cumulative. And, this Court will not address Johnson's first, second, fifth, and ninth grounds for relief because they allege either errors that occurred only at the punishment phase of the trial or errors that would only have had an effect on the punishment phase of the trial and are therefore moot.
In his third ground for relief, Johnson asserts that his attorney Ray Hall provided ineffective assistance of counsel by operating under a conflict of interest that was not effectively waived by Johnson. Specifically, Johnson asserts that the fact that Hall represented John Davis, an inmate who testified for the State at trial, when he was hired by Johnson's family to represent Johnson was a conflict of interest that was not properly waived by Johnson.
Applicable Law
In Cuyler v. Sullivan, 446 U.S. 335 (1980), the Supreme Court announced the general rule with respect to conflicts of interest between attorneys and clients. In that case, a state defendant had filed a federal writ of habeas corpus in which he alleged that his trial attorney was operating under a conflict of interest because he represented the defendant and his two co-defendants in three separate criminal trials. The Supreme Court held that the mere possibility of a conflict of interest is insufficient to overturn a conviction. Rather, in order for a criminal defendant to demonstrate a violation of Sixth Amendment rights that would entitle him to relief, the defendant must establish that his attorney was actively representing conflicting interests and that an actual conflict of interest adversely affected his attorney's performance. Once a criminal defendant demonstrates such a conflict, prejudice is presumed. Id. at 349-50. Since Culyer was handed down, the Supreme Court has reiterated that a defendant is not entitled to a presumption that the prejudice prong of the Strickland standard has been met where there existed a conflict of interest on his attorney's part, unless that conflict affected the attorney's performance. Mickens v. Taylor, 535 U.S. 162, 172-73 (2002).
In Beets v. Scott, 65 F.3d 1258 (5th Cir. 1995), cert. denied, 511 U.S. 1151 (1996), the Fifth Circuit held that Cuyler v. Sullivan was only applicable in situations where an attorney was representing multiple interests. The Fifth Circuit further held in Beets that the Cuyler standard for ineffective assistance of counsel did not extend to conflicts between an attorney's personal interest and his client's interest, as those types of situations were best analyzed under the Strickland standard for ineffective assistance of counsel. Beets, 65 F.3d at 1269-72. Moreover, the Fifth Circuit has held that, in order to show that there has been an adverse effect, a petitioner must show "some plausible defense strategy or tactic [that] might have been pursued but was not, because of the conflict of interest." Hernandez v. Johnson, 108 F.3d 554, 560 (5th Cir. 1997), quoting Perillo v. Johnson, 79 F.3d 441, 449 (5th Cir. 1996).
Applicable Facts
The record before this Court reveals that the trial court held an initial hearing on this issue on June 7, 1996. Prior to the hearing, the State had filed a document entitled "Notice of Potential Conflict of Interest," due to the fact that: an inmate named John Davis had contacted the State with information about Johnson; the State might potentially call Davis as a witness; Johnson had retained Ray Hall as his attorney; and Hall was also representing Davis at the time. At this hearing, Johnson was questioned by his attorney Ray Hall and stated that he had spoken to Hall about the fact that Hall had represented Davis, and he wished to waive any potential conflict. Hall also stated for the record that he intended to withdraw as Davis's attorney after the hearing. (R. 2:6-8). The trial judge then questioned Johnson, informing him that, if Davis testified at Johnson's trial, Hall could not question Davis regarding any information he had learned as a result of representing Davis. Johnson stated that he understood this. The trial judge then appointed another attorney, Jack Strickland, to advise Hall on this issue and the court continued the hearing to a future date. (R. 2:8-11).
On September 9, 1996, the trial court conducted another hearing on this issue. At this hearing, Mr. Strickland questioned Mr. Hall, who testified that he was retained to represent Johnson on March 29, 1996, by Johnson's mother, Sheila Jackson, and had previously been appointed to represent Davis on a robbery charge, but had withdrawn from that representation on June 7, 1996. (R. 2:16-21). Hall further testified that he had represented Davis for a total of six or seven months regarding a robbery charge, that the court had appointed an investigator who did some investigation into the case, that the investigator had not worked on Johnson's case, that Hall had only spoken briefly with the investigator about discussions the investigator had had with witnesses at the scene but had received no written report on the case, that Hall had spoken with Davis either by telephone or in person five or six times; but that Hall had never spoken to Davis about any extraneous offenses he might have been involved with or had knowledge about. (R. 2:20-23, 28). Hall also testified that he had not been aware that Davis and Johnson were speaking, but had advised both clients generally not to speak to anyone about their cases. (R. 2:23-24). Hall acknowledged in his testimony at the hearing that he had never gone to trial on either a capital murder or murder charge and was not board certified in criminal law, but that he had tried about fifteen first-degree felony cases and chosen juries in seven first-degree felony cases. (R. 2:29-30).
Later in the hearing, Strickland related to the trial court his conversations with Johnson. Specifically, Strickland had spoken to Johnson on four occasions in order to insure that Johnson understood Hall's relative inexperience and any possible conflict that existed or could potentially develop. (R. 2:38). Strickland also spoke to Johnson's mother on three occasions, to whom Johnson's family had indicated they were comfortable with whatever decision Johnson made. (R. 2:39). Strickland discussed hypothetical situations with Johnson where there might be a conflict of interest in Hall's representation of him. (R. 2:40-41). Ultimately, Johnson informed Strickland that he believed that Hall's enthusiasm and desire to do well would make up for any lack of experience and that he understood the potential conflict of interest but wanted Hall to continue as his lawyer. (R. 2:40, 42-43). Johnson then testified and, under questioning by Strickland, acknowledged that they had discussed all of these issues and that he was making his decision to waive any conflict of interest freely and voluntarily, without any promises or threats having been made. (R. 2:44-49).
Analysis
The Texas Court of Criminal Appeals addressed this issue on direct appeal and held both that Johnson had failed to establish an actual conflict of interest and that Johnson knowingly and voluntarily waived any potential conflict of interest. Johnson, slip op. at 4-5. These conclusions are not an unreasonable application of federal law. Johnson contends that there was an actual conflict of interest that was not voluntarily waived by Johnson because Hall stated at the September 9, 1996, hearing that he wished to remain Johnson's attorney and believed that it was in Johnson's best interest for him to remain as counsel. (R. 2:33-35). Johnson suggests that it is likely that Hall made similar comments to Johnson when he spoke to him privately and that his eagerness to represent Johnson, especially given his own inexperience with capital murder cases, communicated to a young defendant, prevented the waiver from being a knowing and voluntary one.The record before this Court does not support Johnson's argument. First, Johnson has not pointed to any place in the record to support his claim that there was an actual conflict of interest. Specifically, Johnson has not pointed to any plausible defense tactic that might have been pursued but was not because of a conflict of interest. In that regard, Davis was questioned by Hall's co-counsel, Sam Smith, at trial. Smith questioned Davis extensively about his own lengthy criminal history, the fact that he was initially offered a much worse plea bargain than the one he eventually accepted, that other people in the tank at jail confided in Davis but Johnson has the highest profile case, and that Davis was the one who told Johnson that he should hire Hall as an attorney. (R. 27:82-87, 91, 99, 103). Johnson has not identified any subject about which defense counsel was prevented from questioning Davis due to any conflict of interest. No actual conflict of interest has been shown.
Moreover, Johnson has failed to overcome the presumption of correctness afforded the state court in its conclusion that Johnson waived any conflict of interest. While Johnson points to his youth as a reason to question his waiver, Johnson was appointed an attorney for the sole purpose of explaining the concept of a conflict of interest to him, which Jack Strickland did in numerous conversations with Johnson. The record before this Court indicates that the trial court took painstaking care to insure that Johnson understood his waiver. See Creel v. Collins, 19 F.3d 172, 176 (5th Cir. 1994) (holding a waiver of a conflict of interest valid where the trial court allowed the defendant and his family time to confer with their civil attorney and the defendant informed the trial court on the record that he understood the possibility of a conflict and agreed to waive it). Johnson's third ground is without merit, and it is denied. Undisclosed-Informant Claim
In his fourth ground for relief, Johnson asserts that his constitutional rights were violated because the State used an undisclosed informant to obtain confessions from Johnson. Specifically, Johnson contends that inmate John Davis was an undisclosed informant for the State who elicited statements from Johnson without obtaining a waiver from Johnson of his right to have counsel present during questioning by the State. Accordingly, Johnson contends that his rights under the Sixth and Fourteenth Amendments were violated. The State responds that this claim is procedurally barred and that, in any event, it is without merit.
Applicable Law
The Supreme Court has held that, after a criminal defendant's right to counsel has attached, the government cannot initiate any questioning of the defendant without the presence of his attorney, unless he has waived his right to have counsel present. Brewer v. Williams, 430 U.S. 387 (1977). This includes situations where the government uses a co-defendant who is cooperating with the government to elicit information after both have been indicted. Maine v. Moulton, 474 U.S. 159 (1985); Massiah v. United States, 377 U.S. 201 (1964).
In Creel v. Johnson, 162 F.3d 385 (5th Cir. 1998), the Fifth Circuit, applying the various Supreme Court precedents on the issue, held that the defendant's girlfriend was not an informant for the State when she disclosed to a Texas Ranger who was investigating the case conversations she had with the defendant after he was incarcerated.
Applicable Facts
The trial court held a pre-trial hearing on July 17, 1997, regarding Johnson's statements to John Davis. At this hearing, Davis testified that he had been an inmate in the Tarrant County jail, that Johnson was housed near him, and that Davis is known as a "jailhouse lawyer" in the prison system. He further testified that Johnson approached him and that Johnson asked him for legal advice. (R. 3:4-7). Pursuant to this request, Johnson told Davis about his involvement in the charged murder and the robbery that occurred that same day, as well as his involvement in another murder and his knowledge of a third murder, and at Davis's suggestion gave Davis written versions of these statements. (R. 3:7-9, 25). On March 29, 1996, Davis wrote a letter to the attorney who was prosecuting the relevant murders, Lisa Muller, having obtained her name from an article in the newspaper, stating that he had some information about Johnson. Davis met with Ms. Mullen on April 4, 1996, and gave her the written information Johnson had given him. He also gave a written statement to Mullen recounting the information Johnson had told him. (R. 3:10-14). Davis had never previously met with Mullen or the investigator who was present at the meeting and testified that he had not obtained the information at the request of either the district attorney's office or the police department. (R. 3:12-13). Davis further testified at the hearing that he contacted the State because he did not like Johnson's attitude towards one of the murder victims. (R. 3:10).
Davis testified that Mullen told him at the meeting that no promises were being made to him for the information he was providing and that he had to tell her all that he knew about Johnson at that meeting because no further information that he had could be used at a later date. (R. 3:13, 15-16). Davis did acknowledge, however, that his attorney later obtained a plea deal with the State and that he always intended to give the written information Johnson gave him to the State (R. 3:25-27). He also testified that he continued to write letters to Mullen after their meeting because, although he had initially been moved away from Johnson, Johnson was again moved close to him and Johnson still had confidence in him. (R. 3:28). These letters were admitted into evidence as pre-trial exhibits. (R. 4:Defense Ex. ##1-5).
Davis testified at both the guilt and punishment phases of the trial. At the guilt phase of the trial, Davis testified about what Johnson had told him about his involvement in the attempted robbery of Guadalupe Arriola and Jeffrey Doolittle's murder, as well as what occurred from after Johnson returned home until the time that he turned himself in to the police. (R. 27:52-60, 72-75). The written statement Johnson gave Davis was admitted into evidence. (R. 27:70). At the punishment phase of the trial, Davis testified about what Johnson had told him about his involvement in the murder of a college student at a convenience store. (R. 32:119-127).
Analysis
The State initially asserts that Johnson is procedurally barred from raising this ground for relief because the state court denied this claim on an independent and adequate state procedural ground. Johnson raised this claim at the state habeas level. In its conclusions regarding this ground for relief, the state habeas court stated that the ground could have been, and was not, raised on direct appeal. The state habeas court then went on to conclude that the ground should be denied on its merits. (SHTr.:111).
A federal habeas court is precluded from addressing a claim made by a state prisoner when a state court decided the claim on an independent and adequate state procedural ground. Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). To satisfy the independent and adequate requirements, the dismissal of a claim must "clearly and expressly" indicate that it rests on state grounds that bar relief, and the bar must be strictly and regularly followed by state courts and applied to the majority of similar claims. Finley v. Johnson, 243 F.3d 215, 218 (5th Cir. 2001), citing Amos v. Scott, 61 F.3d 333, 338-39 (5th Cir. 1995).
While the State contends that the state habeas court decided this ground on an independent and adequate state procedural ground, it is difficult to discern from the state court's language whether that court intended to rule that this issue was procedurally barred. While the state court stated that the issue could have been raised on direct appeal, that court went on to rule on the merits without any direct statement that the issue was procedurally barred. Thus, this Court cannot conclude that the state habeas court "clearly and expressly" stated that this claim was procedurally barred on state grounds. Accordingly, this Court will address this claim on its merits.
As the State notes, in order to establish a Sixth Amendment violation, a petitioner must show that: 1) the informant was a government agent; and 2) that the informant deliberately elicited the incriminating statements from the petition. Creel, 162 F.3d at 393. In this ground for relief, Johnson does not contend that Davis was an undisclosed government agent when Johnson first began speaking to him about his involvement in and knowledge of various crimes. And, indeed, the record from the relevant pre-trial hearing reveals that, while Davis had his own motives for encouraging Johnson to confide in him, these confidences were made prior to the prosecution's being made aware of John Davis's existence. Rather, Johnson asserts that Davis testified at both the guilt phase and the punishment phase of the trial about statements Johnson made to him that are not found in the written information Johnson gave Davis and are not contained in Davis's written statement that he made at the time he met with the prosecutor. Accordingly, Johnson argues that these statements must have been made by Johnson to Davis after Davis met with the prosecution and that these statements in particular were therefore elicited by Davis as an undisclosed informant for the State without a waiver of Johnson's right to counsel.
With regard to any testimony Davis gave at the punishment phase of the trial, any alleged harm to Johnson is now moot as this Court has granted Johnson relief with respect to punishment. Concerning the guilt phase of the trial, Johnson contends that Davis was acting as an undisclosed informant when Johnson told him that: 1) the best technique to use when robbing someone was to surprise them and catch them off guard because they are confused and at their most vulnerable; 2) Johnson felt that he could commit robberies without being seen by the victims and that, if anyone saw his face, he would kill the "motherfucker;" and 3) the van that they attempted to rob was a black van. (R. 27:56-57, 60). Johnson further contends that Davis was acting as an undisclosed informant when he heard Johnson talking with other youngsters in the jail tank, something he also testified to at the guilt phase of the trial. (R. 27:60).
Contrary to Johnson's argument, however, in his written statement to the State, Davis specifically stated that Johnson told him that he did not feel he had to wear a mask, but instead wore only dark clothing, that "you have to smoke the `motherfucker' when they saw your face," and that he had shot Jeffrey Doolittle because he had seen his face. Furthermore, in this same statement, Davis stated that Johnson had informed him that he involved himself in robberies committed by his gang because he felt that, after he showed them how to pick a "mark" for robbery, they could do better in the commission of the robberies. And, while Davis does not mention in this statement that the van Johnson and his friends attempted to rob was black, he does recount the robbery, as told to him by Johnson, in detail. (R. 4:State's Ex. 2).
In summary, the record before this Court indicates that the testimony pointed to by Johnson as being evidence that Davis acted as a government informant at a certain point in time was in fact information that was contained in Davis's initial statement to the prosecution. And, to the extent that Davis's testimony at the guilt phase of the trial differs in any respect from his written statement, the divergence is in such irrelevant particulars as the fact that Johnson spoke to other young people in the jail, the color of the van Johnson attempted to rob, and further explanation of how Johnson picked his "mark." The record does not support Johnson's claim that Davis was an undisclosed government informant. The state habeas court concluded that Davis did not act as an agent of the State and did not deliberately elicit incriminating statements from Johnson in violation of Johnson's right to counsel. (SHTr.:111). This conclusion is not an unreasonable application of federal law. Johnson's fourth ground for relief is therefore without merit and is denied.
Cumulative-Error Claim
In his eighth ground for relief, Johnson contends that the cumulative effect of the constitutional errors at his trial deprived him of his due-process rights and his right to a fair trial.
In Derden v. McNeel, 978 F.2d 1453 (5th Cir. 1992), the Fifth Circuit held that in order for a federal habeas petitioner to prevail on a claim of cumulative error at a state trial, he must establish that: 1) the individual errors involved matters of constitutional dimension rather than mere violations of state law; 2) the errors were not procedurally defaulted for habeas purposes; and 3) the constitutional errors so infected the entire trial that the resulting conviction violates due process. Id. at 1458.
As this Court has held, the two claims related to the guilt phase of his trial are without merit and therefore do not establish any constitutional errors which infected the guilt phase of the trial such that Johnson's conviction violates his due-process rights. With regard to the punishment phase of Johnson's trial, this Court has granted Johnson relief and therefore his cumulative error claim relating to the punishment phase of the trial is moot. Johnson's eighth ground for relief is without merit, and he is not entitled to relief on this basis. Accordingly, this claim is denied.
Request for Evidentiary Hearing
Johnson also requests that this Court grant him an evidentiary hearing. Johnson asserts that he is entitled to an evidentiary hearing in federal court because he did not receive one during the state habeas proceeding and because he did not fail to develop his claims at the state level. See 28 U.S.C. § 2254(e)(2).
Even if a petitioner does not fail to develop his factual claims in state court, he is not necessarily entitled to a hearing in federal court. Rather, as the Fifth Circuit has explained in recent cases, in order to be entitled to an evidentiary hearing in federal court, even where, as in the instant case, no evidentiary hearing was conducted by the state habeas court, a habeas petitioner must show either a factual dispute which, if resolved in his favor, would entitle him to relief or in the very least a factual dispute that would require development in order to assess the claim. Murphy v. Johnson, 205 F.3d 809, 815 (5th Cir. 2000); Robison v. Johnson, 151 F.3d 256, 268 (5th Cir. 1998).
In the case at hand, this Court has granted Johnson's writ with respect to the death sentence assessed against him. Accordingly, Johnson's request for an evidentiary hearing on the grounds for relief relating to the punishment phase of the trial is moot. With regard to his other claims, Johnson has not shown any factual dispute that would require any further factual development. Johnson's request for an evidentiary hearing is, therefore, denied.
It is therefore ORDERED that Johnson's Petition for Writ of Habeas Corpus with respect to his death sentence be, and is hereby, GRANTED.
It is further ORDERED that Johnson's sentence of death is VACATED.
It is further ORDERED that Respondent shall either re-sentence Johnson within 180 days or release Johnson from confinement.
It is further ORDERED that the clerk of the Court shall transmit a copy of this order to Petitioner by certified mail, return receipt requested.