Petition for Writ of Certiorari — Dexter Johnson, Petitioner v. Lorie Davis, Director, Texas Department of Criminal Justice, Correctional Institutions Division

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

DEXTER JOHNSON — PETITIONER

VS.

LORIE DAVIS, Director, Texas Department of Criminal Justice,

Institutional Division - RESPONDENT

PETITION FOR A WRIT OF CERTIORARI TO

THE FIFTH CIRCUIT COURT OF APPEALS OF THE UNITED

STATES

IN CASE NO. 17-70032

Patrick F. McCann

Law Offices of Patrick F. McCann

700 Louisiana, STE 3950

Houston, Texas 77002

713-223-3805

writlawyer@justice.com

QUESTION PRESENTED

WHAT ARE THE REQUIREMENTS UNDER RULE 58 FOR A FINAL

JUDGMENT IN DISTRICT COURT FOR A FEDERAL DEATH

PENALTY HABEAS PETITION UNDER THE EIGHTH AND

FOURTEENTH AMENDMENTS AS INTERPRETED BY THIS

COURT?

Mr. Johnson is under sentence of death from the 208 District Court in

Harris County for a capital murder of a young woman and her boyfriend

under Article 37.071, Texas Code of Criminal Procedure (Vernon 1987). The

case has been before this Court once before but the issue here is a critical one

under Supreme Court Rule 10. The Petitioner believes the federal district

court never issued a correct and proper final judgment in this matter as to a

number of the claims raised in the original habeas, and that thus these issues

still remain open and undecided.

Since the Fifth Circuit never granted a certificate of appealability it

never acquired jurisdiction over these issues either. So, in order to answer

this critical procedural question as to whether the federal district court still

has jurisdiction over these matters, the Petitioner seeks certiorari, and asks

the Court to decide the question above as it relates to Mr. Johnson.

LIST OF PARTIES

PETITIONER:

Dexter Johnson

Death Row

Allan B. Polunsky Unit

3872 FM 350 South

Livingston, TX 77351

Attorney of Record:

Patrick F. McCann

Law Offices of Patrick F. McCann

909 Texas Ave, Ste. 205

Houston, Texas 77002

713-223-3805

713-226-8097 Fax

RESPONDENT:

Greg Abbot

Attorney General for Texas

P.O. Box 12548, Capitol Station

Austin, TX 78711

Ellen Stewart Klein Esq., Assistant Attorney General,

State of Texas, Attorney-in-Charge,

Counsel for Respondent-Appellee Davis, at above.

TABLE OF CONTENTS

QUESTION PRESENTED. .............ssccsssesssseccescescveccecseseseeseceeseaseaees 2

LIST OF PARTIES. ...... .cssscecccorsivnsasscrccanssoameswenssmnanneeaneenenxeeecoenmensee 3

OPINIONS BELOW “-- 7

JURISDICITON -------------------- - 7

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED --------- 7

STATEMENT OF THE CASE 8

REASONS FOR GRANTING THE WRIT 11

CONCLUSION 12

INDEX TO APPENDICES

APPENDIX A

Johnson v. Davis, No. 17-70032, unpub. 5th Cir. Issued Aug 24, 2018

APPENDIX B

Aug 2013 order

APPENDIX C

June 2014 order

TABLE OF AUTHORITIES CITED

CASES

Gonzalez v. Thaler, 565 U.S. 184 (2012) at 142..........ccc cee ee eee eee eee 10

Miller-El v. Cockrell, 537 U.S. 322 (2003) at 336-337............ccceeees 10

United States v. Indrelunas 411 U.S. 216 (1973)...........ceeeeeeener eens 10

STATUTES AND RULES

Article 37.071, Texas Code of Criminal Procedure (Vernon 1987)....2

28 U.S.C. § 1257(a), 28 U.S.C. Sec 2254. cccswscssssesesesssacctnaaasinscceses 7

FORO PS screwtvasenssies tants NER REREAD NCIS Riee STR NCOIRENEERSCRRS passim

Moore;s Federal Practice, see Section 6A regarding Rule 58........... 9

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

DEXTER JOHNSON — PETITIONER

VS.

LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL

JUSTICE, INSTITUTIONAL DIVISION —- RESPONDENT

PETITION FOR A WRIT OF CERTIORARI TO

THE FIFTH CIRCUIT COURT OF APPEALS FOR THE UNITED

STATES IN CAUSE 17-70032

Petitioner respectfully prays that a writ of certiorari issue to review

the judgment below and a stay of Petitioners pending execution date.

OPINIONS BELOW

The opinion of the Fifth Circuit’s review of the merits appears at

Appendix A with relevant orders below at Appendix B, and C, to the petition

and is unpublished.

JURISDICITON

The date on which the Court of Criminal Appeals of Texas decided this

case was August 24, 2018.

The jurisdiction of this Court is invoked under 28 U.S.C. § 1257(a).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

Eighth and Fourteenth Amendments to the United States Constitution

which read in pertinent part : “All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are citizens of the United

States and of the State wherein they reside. No State shall make or enforce

any law which shall abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any person of life, liberty, or

property, without due process of law;..” AMEND XIV

Excessive bail shall not be required, nor excessive fines imposed, nor

cruel and unusual punishments inflicted. AMEND VIII.

STATEMENT OF THE CASE

This is a fundamental disagreement between whether or not the orders

issued by the district court in this matter in Cause H-11-2466 in the Southern

District constituted a final judgment for all claims under Federal Rule of

Civil Procedure 58. If they did, then the Petitioner loses. If they did not, or,

as the Petitioner would argue, if there is a question, then the issues raised in

the Petitioner’s original habeas are still under the control of the district court

until it issues a proper judgment.

The Fifth Circuit dismissed the issue of whether a judgment is “Final”

as one of the district court’s “intent”. See Appendice A, Court’s decision

below, page 6. With respect to the Court of Appeals, this seems an

unworkable standard, one in which each order by the district court must be

reviewed under a microscope to determine the inner workings of each judge’s

mind.

However, to fully understand the issue here, the procedural history is

required. Having largely exhausted his state remedies, Mr. Johnson sought

habeas relief in the federal district in the Southern District of Texas. The

district court issued two orders, on in 2013 which denied all his claims except

one regarding the confession on a Fifth Amendment issues [The 2013 order].

In that same order the court ordered additional briefing on that issue, and

then in 2014 issued a final memorandum and order and a final judgment

denying the habeas writ. [The 2014 order] As even the Fifth Circuit

concedes, the district court never issued a separate document on the 2013

order and claims, only the one in 2014. In an abundance of caution, the

Petitioner took up his issues via briefing on the confession issue, and also

requested a certificate of appealability [COA] on the remaining issues.

RULE 58 requires a separate and clear document for the judgment. In

the opinion below, the Fifth Circuit claims that the judge intended the 2014

order to cover all the claims in the 2013 order, despite its lack of any clear

language to that effect. This practice is specifically found to be incorrect in

Moore;s Federal Practice, see Section 6A regarding Rule 58. The Fifth Circuit

denied the COA and the issue on the confession.

Johnson brought his claims again to the district court believing them

timely as the district court had never fasues a proper judgment in this matter

under even a liberal interpretation of Rule 58. The district court refused to

hear it or the alternative theories Johnson brought for relief from his

judgment. [Those alternatives are not brought in this petition and so will not

be addressed.] It further entered a final judgment on June 25th denying

Johnson's petition for a writ of habeas corpus "“[iJn accordance with the

Court's Memorandum and Order of even date". See Appendix.

The June 25, 2014, final judgment did not incorporate in any way,

shape or form the Court's August 19, 2013, Memorandum Opinion and Order.

Nothing referred back to it, nor did the order fulfill the requirements of a

separate document under FRCP 58.

In United States v. Indrelunas, the Supreme Court observed that the

separate document requirement must be “mechanically applied” to all cases

in order to avoid confusion and new uncertainties as to the date of judgment.

411 U.S. 216, 222 (1973). Specifically, the Court noted that Rule 58 had been

amended to remove uncertainties as to when a judgment is entered. To

combat this uncertainty, amended Rule 58 stated that a judgment was

effective only when recorded on a separate document.

Likewise, because the Fifth Circuit contends that all the merits were

addressed when it dismissed the prior request for a COA, it overstepped its

jurisdiction under Miller El v. Cockrell... . As the Supreme Court has clearly

held “[w]hen a court of appeals sidesteps [the COA] process by first deciding

the merits of an appeal, ..., it is in essence deciding an appeal without

jurisdiction.” Miller-El v. Cockrell, 537 U.S. at 336-337. The Court employed

clearly jurisdictional language. Gonzalez v. Thaler, 565 U.S. at 142.

The opinion below believes that the language of the judge in the 2014

order somehow transforms that document into a final judgment under its

unique “intent of the judge” analysis. Respectfully, that is not a proper

review, and while certainly the Fifth Circuit is free to disagree with the

merits of the claims brought it cannot wave a wand and transform a pumpkin

into a carriage, nor another document into a proper judgment.

10

REASONS FOR GRANTING THE PETITION

This Court sets clear and mandatory rules for the requirements

of a final judgment in federal courts so that all litigants can expect to know

when that judgment has issued, and what remedies are available to them. It

is critical in all matters disputed between parties across the country in

federal courts that these requirements be consistent and uniformly enforced.

Here, the district court never properly rendered a final judgment on the

claims in the 2013 order, and hence they remain open and in its jurisdiction.

Neither the Fifth Circuit nor the district court have ever properly ruled on

the claims outside of the Fifth Amendment confession issue, for which,

ironically the district court did issue a proper judgment. The Fifth Circuit

did not do so because the very act of refusing to grant a COA means it never

acquired jurisdiction over the claims. The Fifth Circuit’s odd standard of the

“intent of the judge” should also be called into question as it conflicts with the

clear language of FRCP 58 and will lead to disparate results across the

country.

The district court has never issued a simple proper final judgment as

to the non-confession issues so that they still remain open and under its

purview. Under Supreme Court Rule 10 this Court should exercise its

supervisory powers to firmly declare what the requirements for a final

judgment are in death penalty habeas and all other civil litigation. It should

11

remand this matter back to the district court itself with an order to issue a

final judgment, or to the Fifth Circuit for remand to the district court in

accordance with its decision here.

CONCLUSION

This Honorable Court should grant a Writ of Certiorari to decide the

issue and Order the execution of Petitioner stayed.

LE .

G za"

eg F. McCann

Law Offices of Patrick F. McCann

700 LOUISIANA, STE 3950

Houston, Texas 77002

713-223-3805

writlawyer@justice.com

Date: _ November 234, 2018

2

APPENDICES

A

IN THE UNITED STATES COURT OF APPEALS

Certified as a true copy and issued FOR THE FIFTH CIRCUIT

as the mandate on Aug 24, 2018 United States Court of Appeals

Attest: W. a FILED

Clerk, U.S. Court N. Comte Fifth Circuit No. 17-70032 August 24, 2018

Eyl eat yce

United States Distric

DEXTER JOHNSON, Souther f pre of

Petitioner - Appellant z : AUG 27 2018

Vv.

David J. Bradley, Clerk of Court

LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL

JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

Respondent - Appellee

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:11-CV-2466

Before SOUTHWICK, GRAVES, and HIGGINSON, Circuit Judges.

PER CURIAM:*

Dexter Johnson, a Texas death row prisoner, filed a motion for a new

trial seeking to reopen matters previously adjudicated by the district court in

2013. In the alternative, he sought equitable relief from the 2013 judgment.

The district court denied Johnson’s request for a new trial as untimely and

dismissed his request for equitable relief as a successive habeas petition.

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH

CIR. R. 47.5.4.

Case 4:11-cv-02466 Document 57 Filed in TXSD on 08/27/18 Page 2 of 10

No. 17-70032

Johnson now requests a Certificate of Appealability. For the reasons that

follow, we DENY Johnson’s application.

FACTUAL AND PROCEDURAL BACKGROUND

Dexter Johnson was sentenced to death for the robbery, kidnapping, and

murder of Maria Aparece. The facts surrounding Johnson’s arrest, conviction,

and post-conviction proceedings have been summarized in earlier decisions.

See Johnson v. Stephens, 617 F. App’x 293, 295-99 (5th Cir. 2015). We detail

here the specific procedural history relevant to his current application.

Having exhausted his state appellate and post-conviction remedies,

Johnson petitioned the United States District Court for the Southern District

of Texas for a writ of habeas corpus in 2011. He subsequently moved the

district court to abate the proceedings to allow him to raise a number of

ineffective assistance of counsel claims in state court or, in the alternative,

permit him to amend his federal petition to include the claims. In two separate

orders, the district court denied Johnson’s motion and his habeas petition. The

first order, entered in August 2013, denied relief for all of Johnson's claims

except his claim under Edwards v. Arizona, 451 U.S. 477, 484-85 (1981), for

which the court directed additional briefing. In the same 2013 order, the

district court also denied Johnson’s request to abate or amend his petition. All

that remained following the 2013 order was Johnson's claim under Edwards.

Although the district court had not yet issued a final judgment for the

2013 order, Johnson filed a notice of appeal seeking a Certificate of

Appealability (“COA”) on the issues denied by the order. Texas thereafter filed

an unopposed motion to dismiss the appeal, arguing that an appeal was

premature because the district court had not yet entered a final judgment and

the parties were also still awaiting the district court’s adjudication of Johnson’s

Edwards claim. We agreed and dismissed Johnson’s appeal.

2

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The district court entered its second order in June 2014. The court

denied Johnson’s Edwards claim but granted a COA for that issue. Further,

the district court swa sponte denied a COA for the habeas claims denied in its

August 2013 order because binding precedent foreclosed relief on those claims.

The court then entered a final judgment on the same day. The final judgment

denied Johnson’s habeas petition and dismissed the case with prejudice.

Under the COA granted by the district court, Johnson appealed the

court’s denial of his Edwards claim. Johnson, 617 F. App’x at 299. Notably,

Johnson simultaneously sought a COA to challenge the district court’s 2013

order. Specifically, he argued that the district court erred in denying his other

habeas claims and in denying his motion to abate the proceedings or amend

his federal petition. See id. We affirmed the denial of Johnson's Edwards

claim and denied his request for a COA. Id. at 305.

In June 2017, Johnson filed a motion for a new trial or rehearing under

Federal Rule of Civil Procedure 59(a)(2), seeking to reopen the matters

addressed in the 2013 order. He argued that his current motion was timely

because the district court never entered a separate final judgment for the 2013

order. According to Johnson, the 2014 final judgment only encompassed the

2014 order issued that same day. Alternatively, Johnson moved the district

court to revise its 2013 order as a form of equitable relief under Rule 60(d)(1),

28 U.S.C. § 2243, and Article III of the United States Constitution.

The district court denied Johnson’s motion for a new trial, holding that

its 2014 final judgment encompassed its 2013 order. Accordingly, Johnson’s

motion, filed nearly three years after the 2014 judgment, was untimely.

Further, Johnson had waived any argument that the 2014 final judgment

failed to encompass the 2013 order when he challenged the 2013 order in his

appeal of the 2014 final judgment.

Case 4:11-cv-02466 Document 57 Filed in TXSD on 08/27/18 Page 4 of 10

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The district court also denied Johnson’s request for equitable relief.

Addressing only his request for equitable relief under Rule 60(d)(1), the district

court held that his request should be dismissed as a successive habeas petition.

Johnson then filed a motion for reconsideration, arguing that the district court

failed to address his requests for equitable relief under Section 2243 and

Article III. The district court denied Johnson’s motion for reconsideration,

holding that it had not addressed those requests because they were frivolous

and without merit.

Johnson now seeks a COA from this court on the issues of the denial of

the motion for a new trial and of his requests for equitable relief.

DISCUSSION

I. Motion for New Trial

We first discuss the parties’ reliance on our traditional COA standard of

review for a district court’s denial of a habeas petitioner’s claims, either on the

merits or on procedural grounds. In both instances we ask whether reasonable

jurists could debate the district court’s basis for its holding on the underlying

claims. See Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). That is not the

posture of this case. The district court did not deny Johnson’s habeas claims,

but rather his motion for a new trial; it already denied his habeas claims years

earlier. Accordingly, our standard of review for the district court’s denial of

Johnson’s motion for a new trial must reflect this procedural posture.

This case procedurally is similar to cases where the petitioner seeks a

COA for a district court’s denial of a Rule 60(b) motion for relief from a prior

habeas judgment. There, we blend the COA standard with the standard for

the underlying Rule 60(b) motion, asking whether “a jurist of reason could

conclude that the district court’s denial of [the petitioner’s] motion was an

abuse of discretion.” Hernandez v. Thaler, 630 F.3d 420, 428 (5th Cir. 2011).

4

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Traditionally, we review the denial of a motion for a new trial under Rule 59

for abuse of discretion. Benson v. Tyson Foods, Inc., 889 F.3d 233, 234 (5th Cir.

2018). Consequently, a COA may issue here only if a reasonable jurist could

conclude that the district court abused its discretion in denying the petitioner’s

motion for a new trial. See Hernandez, 630 F.3d at 428.

A district court may, after the completion of a nonjury trial and upon a

motion for a new trial, “open the judgment if one has been entered, take

additional testimony, amend findings of fact and conclusions of law or make

new ones, and direct the entry of a new judgment.” FED. R. CIv. P. 59(a)(2).

Rule 59(b) mandates that the motion for a new trial “be filed no later than 28

days after the entry of judgment.” Additionally, Rule 58(a) requires “[e]very

judgment and amended judgment” to “be set out in a separate document.”

Johnson argues that his motion for a new trial was timely because the

district court’s 2014 final judgment did not encompass its 2013 order

dismissing the bulk of his habeas claims and his request to abate the

proceedings or amend his petition. Essentially, he argues that because he

requests a new trial for issues addressed in the 2013 order, the absence of a

final judgment for that order makes his request for a new trial timely.

The district court held when denying relief that its 2014 final judgment

served as the Rule 58(a) final judgment for its 2013 order. In its entirety, the

2014 final judgment states: “In accordance with the Court’s Memorandum and

Order of even date, this Court DENIES Dexter Johnson’s petition for a writ of

habeas corpus. This case is DISMISSED with prejudice. This is a final

judgment.” Johnson asserts that the 2014 final judgment was not a Rule 58(a)

final judgment for the 2013 order because the “of even date” language limited

the judgment’s applicability to the 2014 order. We disagree.

In determining the finality of a judgment, the district judge’s intention

is “crucial.” Vaughn v. Mobil Oil Expl. & Producing Se., Inc., 891 F.2d 1195,

a)

Case 4:11-cv-02466 Document 57 Filed in TXSD on 08/27/18 Page 6 of 10

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1197 (5th Cir. 1990). Hence, even when a judgment does not specifically refer

to all pending claims, it will still be deemed final as to the unreferenced claims

“if it is clear that the district court intended, by the [judgment], to dispose of

all claims.” See McLaughlin v. Miss. Power Co., 376 F.3d 344, 351 (5th Cir.

2004). We look to the language of the judgment to decipher the court’s intent.

See Armstrong v. Trico Marine, Inc., 923 F.2d 55, 58 (5th Cir. 1991). “When

the district court ‘hand[s] down a judgment couched in language calculated to

conclude all claims before him,’ that judgment is final.” Jd. (citation omitted).

Examining the language of the judgment here, we see the district court

clearly intended the judgment to dispose of all Johnson’s claims, including

those from the 2018 order. The “of even date” language upon which Johnson

relies is preceded by the phrase “[i]n accordance with the Court’s Memorandum

and Order.” The Merriam-Webster dictionary defines the phrase as “in a way

that agrees or follows (something, such as a rule or request).” MERRIAM-

WEBSTER (online ed.). Although the judgment does refer specifically to the

2014 order, that reference is in the context of the court stating that the

judgment was entered consistently with the 2014 order.

In the 2014 order, the district court referred to the 2013 order three

times. The court twice noted that its 2013 order denied habeas relief on all of

Johnson’s claims except for his Edwards claim. The court later swa sponte

denied Johnson a COA for the claims it considered in the 2013 order because

“(clear and binding precedent foreclose[d] relief’ on the claims. The court's

entering of a final judgment “[i]n accordance with” the 2014 order, and its

repeated references in the 2014 order to the 2013 order, sufficiently indicates

that the court intended the final judgment to dispose of all of Johnson’s claims.

In addition, Johnson treated the final judgment as covering both the

2013 and 2014 orders. On appeal from the 2014 final judgment, Johnson not

only challenged the court’s denial of his Edwards claim but also sought a COA

6

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to determine whether the court erred when it denied in the 2013 order his

abatement or amendment motion and remaining habeas claims. See Johnson,

617 F. App’x at 295. His briefing did not object to the lack of a final judgment

for the 2013 order.

Johnson’s treatment of the 2014 final judgment as covering the 2013

order is notable because “[tjhe sole purpose of Rule 58’s separate-document

requirement [is] to clarify when the time for an appeal begins to run.” Ludgood

v. Apex Marine Corp. Ship Mgmt., 311 F.3d 364, 368 (5th Cir. 2002). The

requirement is “a safety valve preserving a litigant’s right to appeal in the

absence of a separate document judgment.” Baker v, Mercedes Benz of N. Am.,

114 F.3d 57, 60 (5th Cir. 1997). Johnson’s effort to obtain a COA for issues

contained in the 2013 order shows that he treated the 2014 final judgment as

the district court intended it, and that his right to appeal the 2013 order was

indeed protected.

Reasonable jurists could not conclude that the district court’s denial of

the motion for new trial was an abuse of discretion. The motion filed nearly

three years after the final judgment was untimely. See FED. R. CIv. P. 59(b).

I. Equitable Relief

Johnson seeks a COA to determine whether the district court erred in

denying him equitable relief. He asserts that the proper standard of review is

whether “jurists of reason could find it debatable whether the district court

abused its discretion in denying” him equitable relief. Even assuming such a

standard is appropriate, Johnson has not met it.

Johnson contends that he is entitled to equitable relief in the form of the

district court’s revising its judgment for the issues it considered in the 2013

order. He argues that such relief is cognizable under Rule 60(d)(1), Section

2248, and Article II]. We look first to Rule 60(d)(1).

7

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a. Rule 60(d)(1)

Rule 60(d)(1) provides that Rule 60 does not limit the district court’s

power to “entertain an independent action to relieve a party from a judgment,

order, or proceeding.” In granting relief, we require the presence of “fraud,

accident, or mistake which prevented the defendant in the judgment from

obtaining the benefit of his defense.” Addington v. Farmer’s Elevator Mut. Ins.

Co., 650 F.2d 663, 668 (5th Cir. Unit A July 1981) (quoting Bankers Mortg. Co.

uv. United States, 423 F.2d 73, 79 (5th Cir. 1970)). The advantage of an

independent action is that it can be raised at any time, unlike a motion for a

new trial. See Bankers Mortg. Co., 423 F.2d at 78n.13. That Rule, though, is

affected by the Antiterrorism and Effective Death Penalty Act (“AEDPA”). It

requires courts to dismiss a “claim presented in a second or successive habeas

corpus application under Section 2254 that was presented in a prior

application.” 28 U.S.C. § 2244(b)(1).

Prior to 2007, Rule 60(b) also contained the above-quoted language

concerning independent actions now present in Rule 60(d)(1). See FED. R. CIV.

P. 60(b) advisory committee’s note to 2007 amendment. The identical language

in Rule 60(b) was “deleted as unnecessary” in 2007. See id. Prior to its

removal, we held that Rule 60(b)’s independent action language cannot “be

made a vehicle for the relitigation of issues.” Bankers Mortg. Co., 423 F.2d at

79. Analyzing the same provision in the context of AEDPA, the Supreme Court

has determined that allowing Rule 60(b) to be used “to present new claims for

relief from a state court’s judgment of conviction — even claims couched in the

language of a true Rule 60(b) motion — circumvents AEDPA’s requirement

that a new claim be dismissed unless it relies on either a new rule of

constitutional law or newly discovered facts.” Gonzalez v. Crosby, 545 U.S.

524, 531 (2005). Under Section 2244, “any claim that has already been

adjudicated in a previous petition must be dismissed.” Jd. at 529-30. A motion

8

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brings “a ‘claim’ if it attacks the federal court’s previous resolution of [the]

claim on the merits.” Id. at 532.

Johnson attempts to rely on Rule 60(d)(1) to challenge the merits of the

district court’s prior resolution of his claims. He cannot circumvent AEDPA by

filing an independent action that seeks readjudication of his habeas claims.

b. Article IIT and Section 2243

Johnson argues that Article III provides a district court the equitable

power to revisit or revise its own judgments in the interest of justice. Further,

he argues that “[a] district court’s Article III inherent equitable powers cannot

be constrained by statute or rule.” According to Johnson, AEDPA therefore

negates a provision of the Constitution by requiring dismissal of successive

habeas petitions. See § 2244(b)(1). In addition, Johnson relies on a provision

of Section 2243 that requires district courts entertaining an application for a

writ of habeas corpus to “dispose of the matter as law and justice require.”

Although stated in generalities, Johnson’s argument is essentially that

Congress may not bar a petitioner from endlessly presenting the same habeas

claim before a federal court under the guise of equitable relief. He cannot,

however, cite to any Fifth Circuit or Supreme Court precedent interpreting or

applying Article ITI or Section 2243 in such a fashion. Indeed, Johnson appears

to have taken his argument near-verbatim from the amicus brief filed by the

Federal Public Defender in Gonzalez. See Brief of the Office of the Federal

Public Defender for the Middle District of Tennessee as Amicus in Support of

Petitioner at 2, Gonazlez v. Crosby, 545 U.S. at 524 (No. 04-6432).

The district court did not err in concluding that Johnson’s arguments

were “wholly without merit.”

The application for a Certificate of Appealability is DENIED.

Case 4:11-cv-02466 Document 57 Filed in TXSD on 08/27/18 Page 10 of 10

United States Court of Appeals

FIFTH CIRCUIT

OFFICE OF TITE CLERK

LYLE W. CAYCE TEL. 504-310-7700

CLERK 600 S. MAESTRI PLACE

NEW ORLEANS, LA 70130

August 24, 2018

Mr. David J. Bradley

Southern District of Texas, Houston

United States District Court

515 Rusk Street

Room 5300

Houston, TX 77002

No. 17-70032 Dexter Johnson v. Lorie Vavis, Director

USDC No. 4:11-CV-2466

Dear Mr. Bradley,

Enclosed is a certified copy of an opinion-order entered on August

24, 2018. We have closed the case in this court.

Sincerely,

LYLE W. CAYCE, Clerk

f

i

le, al l

By:

Nancy F. Dolly, Deputy Clerk

504-310-7683

Enclosure (s)

cc: Mr. Patrick F. McCann

Ms. Ellen Stewart-Klein

Ms. Gwendolyn Suzanne Vindell

APPENDICES

B

Case 4:11-cv-02466 Document 19 Filed in TXSD on 08/19/13 Page 1 of 50

(

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

DEXTER JOHNSON, §

§

Petitioner, §

§

Vv. § Civit ACTION H-11-2466

§

WILLIAM STEPHENS, Director, §

Texas Department of Criminal Justice, §

Institutional Division, §

§

Respondent. §

MEMORANDUM OPINION AND ORDER

In 2007, a Texas jury convicted Dexter Johnson of capital murder. After exhausting state

appellate and post-conviction remedies, Johnson filed a federal petition for a writ of habeas corpus.

Dkt. 1. After Respondent William Stephens filed an answer, Johnson moved to abate these

proceedings or amend his habeas petition. Dkt. 14. After reviewing the pleadings, the record, and

the applicable law, the Court denies Johnson’s pending motion and all but one claim in Johnson’s

federal habeas petition.

I, BACKGROUND

Johnson’s capital conviction and death sentence arise from the murder of 23-year-old Maria

“Sally” Aparece during the course of a robbery. When her parents returned home from seeing a

movie on June 18, 2006, they waved at Ms. Aparece who was making a Father’s Day card in her

bedroom. A little after midnight, Ms. Aparece left in her Toyota Matrix to meet her boyfriend, Huy

Ngo. No one heard from her again.

Case 4:11-cv-02466 Document 19 Filed in TXSD on 08/19/13 Page 2 of 50

For the next two days, Ms. Aparece’s parents assumed that she was staying with a friend.

Her father eventually reported her disappearance to the Sugar Land police department. He also

checked her credit card records and found-that someone had repeatedly used her card, overdrawing

her account.

Fort Bend County Police Detective Everett Hargrave began to investigate Ms. Aparece’s

disappearance. His investigation revealed that, hours after she left her house, surveillance video had

captured two men using Ms. Aparece’s credit card across town from her home. A separate police

investigation by the Humble Police Department recovered Ms. Aparece’s car at an apartment

complex on June 20, 2006.

The next day, the Humble police responded to a report that Johnson’s 14-year-old girlfriend

had run away. When they arrived at her mother’s apartment, which was in the same complex where

the police had found Ms. Aparece’s car, Johnson was there. After the police found marijuana and

a shotgun in the apartment, they tried to arrest Johnson. He fled, but was soon apprehended.

The confluence of finding Ms. Aparece’s car and Johnson’s arrest led the police investigation

down a path that uncovered the story of what had happened the night she disappeared. Detective

Hargrave and fellow officer Bruce Campbell traveled to the Humble Police Department on the

afternoon of June 21, 2006, to interview Johnson. Johnson waived his rights orally and in writing.

Over the next four hours, Johnson admitted to participating in various crimes, many of which

involved his friends Ashley Ervin, Louis Ervin, Keithron Fields, and Timothy Randle. In the portion

of his interview admitted at trial, Johnson denied having any knowledge of Ms. Aparece’s

disappearance, but claimed that he found her credit cards on the ground. He eventually “admitted

his involvement in the aggravated robbery of the couple, and he had named his accomplices.” State

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vy. Johnson, 2010 WL 359018, at *5 (Tex. Crim. App. Jan. 27, 2010) (unpublished). Johnson

described how he, along with the Ervins, Randle, and Fields, robbed the couple and stole their car.

Johnson “still maintained that, when he drove away in [Ms. Aparece’s car] with Louis [Ervin] and

Fields, he left the couple standing on the street, unharmed.” Johnson, 2010 WL 359018, at Eo)

During the interview, however, the police ignored Johnson’s attempt to invoke his right to silence.

The police stopped interviewing Johnson shortly after he asked for an attorney.

The police later arrested Randle and another friend named Alvie Butler. After about 20

minutes of questioning, Randle agreed to take the police to the decomposing bodies of the two

victims. Both had died from gunshot wounds, later determined to have come from a .25 caliber

automatic firearm. Ms. Aparece’s body was unclothed.

The police began interviewing Johnson’s friends separately. The Court of Criminal Appeals

summarized the version of events revealed by the police interviews:

[I]n the early morning hours of Sunday, June 18, 2006, [Johnson], Ashley Ervin

(Ashley), Louis Ervin (Louis), Keithron Fields, and Timothy Randle were riding

around in Ashley’s black Nissan Sentra, looking for someone to rob. They eventually

came upon Aparece and her boyfriend, Huy Ngo, sitting inside Aparece’s blue

Toyota Matrix, which was parked down the street from Ngo’s house. Holding a

shotgun, [Johnson] stood outside the driver’s door and threatened to shoot Aparece

through the window if she did not open the door. When she complied, he threw her

into the back seat of the Matrix, while Fields, who had been standing outside the

passenger’s door, did the same with Ngo. Louis climbed in next to Aparece and Ngo,

[Johnson] climbed into the driver’s seat, and Fields climbed into the front passenger

seat. [Johnson] then drove around, demanding money from Aparece and Ngo.

Ashley and Randle followed in the Sentra. Eventually, both vehicles stopped near

a wooded area. Fields forced Ngo out of the car. [Johnson] then raped Aparece in

the car while Fields held a gun to Ngo’s head and taunted him about what [Johnson]

was doing to his girlfriend. [Johnson] and Fields then marched Aparece and Ngo

into the woods and shot them each in the head.

[Johnson] and Fields took the Matrix back to their apartment while the Ervins and

Randle followed in the Sentra. On the way, they stopped at a gas station and used

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Aparece’s credit card to buy gas for both vehicles. In the following days, [Johnson] used

Aparece’s credit card to make additional purchases.

Johnson, 2010 WL 359018, at *1 (footnote omitted).

On June 22, 2006, Johnson participated in a second police interview, this time conducted by

Houston Police Department Detective Clement Abbondondalo. The Texas courts had not yet

appointed him an attorney. Johnson confirmed many of the events described by his co-defendants,

though he placed much of the blame on Randle. Johnson admitted to ordering the couple out of the

car with a shotgun and driving Ms. Aparece’s car during the robbery. He confessed that he raped

Ms. Aparece. He acknowledged that he fired the shotgun after taking the two victims back into a

grassy area, though he claimed that he only intended to scare the couple. He conceded that he had

fired a .25 pistol into the ground one time. He doubted that he hit anyone with the gunshot, but said

the shot may have hit the male victim. He pinned Ms. Aparece’s murder on Randle.

The State of Texas charged Johnson with intentionally causing the death of Maria Aparece

during the course of robbery. The State’s case against Johnson rested primarily on Louis Ervin’s

testimony and Johnson’s two police statements. The prosecution also emphasized that after the

murders Johnson bragged that he “had to go ahead and off them people,” because “they didn’t want

to give him no money.” He then said that “killing people is what he do.” Tr. Vol. 24 at 102, 106,

113.'

! The state court proceedings in this case resulted in a voluminous record. The Court will cite the

Clerk’s Record containing trial court motions and docket entries as Clerk’s Record Vol.__at__. The record contains

two additional volumes of the trial record, but the Court will cite to only one as Supplemental Clerk’s Record at____

The reporter’s record containing the trial court proceedings will be cited as Tr. Vol. at__. The Court will refer

to the record from Johnson’s state habeas proceedings as State Habeas Record at___. Respondent provided the Court

with copies of Johnson’s videotaped and audiotaped interrogations. The Court will cite to them by their trial exhibit

number.

Case 4:11-cv-02466 Document 19 Filed in TXSD on 08/19/13 Page 5 of 50

Johnson’s trial defense tried to portray him as the duped scapegoat for his accomplices, who

were the real murderers.” The jury instructions allowed for his conviction for capital murder, along

with the lesser-included offenses of felony murder and aggravated robbery. Clerk’s Record Vol. 3

at 530, 533-36. The jury could convict him of capital murder as the gunman, as a party, or as a

conspirator to the offense. Clerk’s Record Vol. 3 at 532-33. The jury convicted him of capital

murder.

Texas law decided Johnson’s fate through the jury’s answers to three special issue questions:

Special Issue No. 1

Do you find from the evidence beyond a reasonable doubt that there is a probability

that the defendant Dexter Darnell Johnson, would commit criminal acts of violence

that would constitute a continuing threat to society?

Special Issue No. 2

Do you find from the evidence beyond a reasonable doubt that Dexter Darnell

Johnson, the defendant himself, actually caused the death of Maria Aparece, on the

occasion in question, or if he did not actually cause the death of Maria Aparece, that

he intended to kill Maria Aparece or that he anticipated that a human life would be

taken?

Special Issue No. 3

Do you find from the evidence taking into consideration all of the evidence,

including the circumstances of the offense, the defendant’s character and background

and the personal moral culpability of the defendant, Dexter Darnell Johnson, that

there is a sufficient mitigating circumstance or circumstances to warrant that a

sentence of life imprisonment without parole rather than a death sentence be

imposed?

Clerk’s Record Vol. 3 at 563-65

2

attorneys conjunctively as “trial counsel.”

James Leitner and Anthony Osso represented Johnson at trial. The Court will refer to Johnson’s

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The punishment phase showed that the victims’ murder was only one episode in an escalating

pattern of lawlessness. Often in the company of his friends, Johnson had committed numerous

aggravated robberies. He had kidnaped and robbed others in a similar fashion to Ms. Aparece’s

abduction. The day after the murder Johnson committed a robbery while driving Ms. Aparece’s car.

Importantly, the State relied on “the most powerful imaginable aggravating evidence,” that Johnson

had killed before. Wong v. Belmontes, _U.S.__, 130 S. Ct. 383, 391 (2009). In total, Johnson

had taken part in three additional killings during the same time period as Ms. Aparece’s murder.

Given that history of lawlessness, Johnson’s attorneys faced a difficult challenge in defending against

a death sentence.

The defense called several witnesses in the punishment phase to mitigate against a death

sentence and show that Johnson would not be a future danger. Family members testified about his

childhood and upbringing, describing his youth as full of “poverty and chaos.” Tr. Vol. 34 at 62.

Mental health experts explained that Johnson had low intelligence, brain damage, a childhood speech

impediment, difficulties learning, and mental illness. The defense tried to minimize J ohnson’s

involvement in other crimes.

The jury’s answers to the special-issue questions resulted in a death sentence. After

unsuccessfully availing himself of state appellate and habeas review, Johnson filed a federal petition

for a writ of habeas corpus raising the following claims:

A. The police continued questioning Johnson after he exerted his right to

counsel in violation of Edwards v. Arizona, 451 U.S. 477 (1981).

B. The Constitution should prohibit the execution of a severely mentally ill

inmate.

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