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Johnson v. Davis

United States District Court, W.D. Texas, San Antonio Division

April 23, 2018

LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.



         Alexander Johnson, an inmate in the custody of the Texas Department of Criminal Justice-Correctional Institution's Division, has filed a counseled application for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging his conviction on one count of murder. (ECF No. 1). As required by Rule 4 of the Rules Governing Section 2254 Cases, the Court conducted a preliminary review of the petition. Having considered the habeas petition (ECF No. 1), Respondent's Answer (ECF No. 7), Petitioner's Reply (ECF No. 10), the record (ECF No. 8), and applicable law, the Court finds the petition should be DENIED. Petitioner is also denied a certificate of appealability.


         A grand jury indictment returned July 21, 2010, charged Petitioner with murder, alleging the use of a deadly weapon. (ECF No. 8-6 at 12). Petitioner testified at his trial in the 186th District Court of Bexar County, Texas. The Fourth Court of Appeals summarized his testimony as follows:

During the guilt-innocence phase of trial, appellant testified on his own behalf. He said he and Randi Flores both worked for University Health System. Appellant said he and Randi were friends and that he had feelings for her. When he was told she was dating someone else, he was "bothered, " but not upset. In the evening of May 13, 2010, appellant drove to an apartment complex to see Randi. While in the parking lot of the complex, he asked Randi if she was "with Andy [Vela][1] now, " she replied "yes, " and appellant said "okay" and then drove away.
At some point in the evening, appellant drove to another apartment in search of some of his belongings. ... A few hours later, he returned to the apartments where he had earlier spoken to Randi to meet with Randi's mother who said she had some of his belongings.
While waiting in his car for Randi's mother, he saw a truck and two cars full of people and he thought to himself, "Something like this is not good Be careful." Appellant said Josue [the victim] walked up to appellant's car and asked "What the, 'blank, ' are you doing? What the F are you doing back here?" Appellant said Josue had his hands in his pockets as he was walking, as if he were holding his pants up under his shirt. Appellant said he asked Josue if he had his "stuff, " to which Josue replied "Yeah, I got something for you, " and Josue pulled out a gun. Appellant said he then reached for his gun and started firing, and then he drove away. Appellant could not remember how many times he fired, and he said he was terrified. Appellant was arrested at approximately 3:00 a.m. the next morning. On cross-examination, appellant said he knew Josue and that Josue was a "good guy, " but "if he wouldn't have did what he did, then I would never have done that." Appellant said he shot Josue because Josue pointed a gun at him and he felt justified in shooting Josue because he believed his own life was in danger.

Johnson v. State, No. 04-11-00461-CR, 2013 WL 345006, at *2 (Tex. App.-San Antonio 2013, pet. ref d).

         Several witnesses testified that Randi was visiting with friends in the parking lot of the apartment complex when Petitioner drove into the parking lot around 10:30 p.m. These individuals knew the victim, Randi, and Petitioner, and testified under subpoena as State's witnesses.[2] (ECF No. 8-11 at 44, 71, 109). These witnesses testified they observed Josue walk towards them in the parking lot as Petitioner drove into the parking lot. They all testified that, as Petitioner stopped his vehicle near them, Josue walked toward the driver's side of the vehicle and asked Petitioner "What are you doing?" or "Do you need something?" or "Can I help you?" (ECF No. 8-11 at 55, 79, 120). They testified that immediately afterward they heard at least four gunshots, and witnessed Petitioner speed away in his vehicle. The State subpoenaed the testimony of Andy Vela and Valerie Ingorvaia, who testified they were with the victim in Ms. Ingorvaia's apartment just prior to the shooting. (ECF No. 8-11 at 132, 143-44, 183-84). Although they did not witness the shooting, Mr. Vela and Ms. Ingorvaia heard the shots and rushed to where Josue was lying in the parking lot. (ECF No. 8-11 at 144, 184). These two witnesses testified Josue named Petitioner as the person who shot him, and then died. (ECF No. 8-11 at 147-48, 187). On cross-examination defense counsel highlighted inconsistencies in the State's witnesses' statements, and elicited testimony from the medical examiner that at least one of the gunshots would have immediately rendered Josue unconscious and unable to speak. (ECF No. 8-12 at 72-73).

         The jury was instructed on murder and self-defense. (ECF No. 8-6 at 144-55). The jury found Petitioner guilty of murder, and the trial court imposed a sentence of life imprisonment. (ECF No. 8-6 at 156, 169). Petitioner was appointed appellate counsel, who did not file a motion for a new trial. (ECF No. 7 at 3). See also Johnson, 2013 WL 345006 at *5 n.1.

         Petitioner appealed, asserting he was entitled to a new sentencing hearing because the trial court was not an impartial adjudicator. (ECF No. 8-1). The Fourth Court of Appeals affirmed the trial court's judgment. Johnson, 2013 WL 345006, at *5.

         Petitioner, through counsel, sought a state writ of habeas corpus, asserting he was denied his right to a public trial because the public was excluded from the courtroom during voir dire and because he was denied his right to the effective assistance of trial and appellate counsel. (ECF No. 8-19 at 10, 12-14). Petitioner asserted trial counsel was ineffective for failing to object to the "exclusion of the public during jury selection and by failing to interview and call as a witness at trial Jasmine Salinas who could have contradicted Andy Vela's testimony that Josue did not arm himself prior to confronting Alex." (ECF No. 8-19 at 39). He alleged appellate counsel's performance was deficient because counsel failed to file a motion for a new trial regarding the improper exclusion of the public during jury selection. (ECF No. 8-19 at 40). The state habeas trial court made findings of fact and conclusions of law, and recommended the writ be denied. (ECF No. 8-19 at 184-90). The Court of Criminal Appeals denied the writ on the findings of the trial court. (ECF No. 8-17).

         In this federal habeas action Petitioner asserts he was denied his right to a public trial. (ECF No. 1 at 7; ECF No. 6 at 12-26). He further alleges he was denied the effective assistance of trial and appellate counsel. (ECF No. 6 at 26-39). He also contends "[t]he state habeas court's finding that the courtroom was not closed to the public during jury selection is an unreasonable determination of the facts, " and that "[t]he state habeas court's finding that the defense adequately investigated this case and that several witnesses, who stated they were available to testify at trial and were not interviewed by the defense, were not available at the time of trial is an unreasonable determination of the facts." (ECF No. 6 at 42). Respondent allows the petition is timely and not successive, and that Petitioner exhausted his federal habeas claims in the state courts. (ECF No. 7 at 5).


         I. Standard of Review

         A. Review of State Court Adjudications

         Petitioner's habeas petition is governed by the heightened standard of review provided by the Antiterrorism and Effective Death Penalty Act ("AEDPA"), codified at 28 U.S.C. § 2254. Under § 2254(d), a petitioner may not obtain federal habeas corpus relief on any claim that was adjudicated on the merits in state court proceedings, unless the adjudication of that claim either "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 based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. Brown v. Payton, 544 U.S. 133, 141 (2005). A state court's findings of fact are presumed to be correct unless the petitioner can rebut the findings of fact through clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Valdez v. Cockrell, 274 F.3d 941, 949 (5th Cir. 2001). This intentionally difficult standard stops just short of imposing a complete bar on federal court relitigation of claims already rejected in state proceedings. Harrington v. Richter, 562 U.S. 86, 102 (2011).

         A federal habeas court's inquiry into unreasonableness should always be objective rather than subjective, with a focus on whether the state court's application of clearly established federal law was "objectively unreasonable, " and not whether it was incorrect or erroneous. McDaniel v. Brown, 558 U.S. 120, 132-33 (2010); Wiggins v. Smith, 539 U.S. 510, 520-21 (2003). As long as "fairminded jurists could disagree" on the correctness of the state court's decision, the state court's determination that a claim lacks merit precludes federal habeas relief. Richter, 562 U.S. at 101 (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).

         B. Review of Sixth Amendment Claims

         The Court reviews Sixth Amendment claims concerning the alleged ineffective assistance of counsel under the two-prong test established in Strickland v. Washington, 466 U.S. 668 (1984). To succeed on a Strickland claim, a petitioner must demonstrate counsel's performance was deficient and this deficiency prejudiced his defense. Id. at 687-88, 690. The Supreme Court has held that "[s]urmounting Strickland's high bar is never an easy task." Padilla v. Kentucky, 559 U.S. 356, 371 (2010).

         When determining whether counsel performed deficiently, courts "must be highly deferential" to counsel's conduct, and a petitioner must show that counsel's performance fell beyond the bounds of prevailing objective professional standards. Strickland, 466 U.S. at 687-89. Counsel is "strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Burt v. Titlow, 134 S.Ct. 10, 17 (2013) (quoting Strickland, 466 U.S. at 690). Accordingly, there is a strong presumption that an alleged deficiency "falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689). To demonstrate prejudice, a petitioner "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694.

         A Strickland claim fails if the petitioner cannot establish either deficient performance or prejudice and, accordingly, the Court need not evaluate both prongs of the test if the petitioner makes an insufficient showing as to either performance or prejudice. Id. at 697; Blanton v. Quarterman, 543 F.3d 230, 235-36 (5th Cir. 2008). A habeas petitioner has the burden of proving both prongs of the Strickland test. Rogers v. Quarterman, 555 F.3d 483, 489 (5th Cir. 2009); Blanton, 543 F.3d at 235.

         II. Merits

         A. Public Trial

         Petitioner contends the trial court, Judge Herr, denied him a public trial. (ECF No. 6 at 12). He alleges members of the public were present prior to voir dire, but were "forced by the bailiffs to leave the courtroom before the venire panel entered the courtroom." (ECF No. 12 at 12, 25). Petitioner raised this claim in his state habeas action, and the Court of Criminal Appeals denied the claim on the findings of the habeas trial court, Judge Moore.

         In an affidavit in the state habeas action, a Ms. Johnson stated she was present in the courtroom on the first day of trial, and that the bailiff required her and "all of the members of the public (approximately five other people) to leave the [courtroom] before the venire panel entered the [courtroom]." (ECF No. 8-19 at 124). Judge Herr, her court reporter, and Petitioner's trial counsel all filed affidavits in the state habeas action. Petitioner's trial counsel averred:

The usual practice in the 186th District Court at that time was for the bailiff to ask members of the public to leave the courtroom during jury selection because of limited space. I knew in advance that this was going to happen so I had already informed Alex Johnson and his family. No. one objected or said they wanted to [be] in the courtroom during jury selection. If any member of Alex Johnson's family or friends had wanted to remain in the courtroom during jury selection I would have informed the Judge. I do not recall how many other people, if any, were in the courtroom of the 186th.

(ECF No. 8-19 at 194).

         Judge Herr's ...

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