Opposition Brief — Kevin Johnson, Petitioner v. Troy Steele, Warden

Supreme Court briefFeb 9, 2022

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No. 21-6580

IN THE SUPREME COURT OF THE UNITED STATES

Kevin Johnson,

Petitioner,

Troy Steele, Warden,

Respondent.

Brief in Opposition to Petition for Writ of Certiorari to the United States

Court of Appeals for the Eighth Circuit

ERIC S. SCHMITT

Missouri Attorney General

Andrew J. Crane

Assistant Attorney General

Counsel of Record

P.O. Box 899

Jefferson City, MO 65102

Telephone: (573) 751-0264

Andrew.Crane@ago.mo.gov

Attorneys for Respondent

Capital Case

Questions Presented

1. Should this Court require federal courts of appeal to issue written

opinions when declining to issue a certificate of appealability even

though no such requirement exists in statute or this Court’s precedent?

2. Did the lower courts correctly decline to issue a certificate of

appealability on Johnson’s Batson claim that had been previously denied

by the Missouri Supreme Court?

3. Did the lower courts correctly decline to issue a certificate of

appealability on Johnson’s procedurally defaulted claim that trial

counsel was ineffective for failing to present additional evidence about

the neighborhood Johnson lived in?

Table of Contents

Questions Presented ............................................................................................ 1

Table of Contents ................................................................................................. 2

Table of Authorities ............................................................................................. 3

Statutes Involved ................................................................................................. 4

Statement of the Case ......................................................................................... 5

Reasons for Denying the Petition ....................................................................... 8

I. There is no support for Johnson’s argument that a court of appeals

must issue a reasoned opinion when it denies a certificate of

appealability. .............................................................................................. 8

A. The well-established legal standards for reviewing a certificate of

appealability do not require courts to issue a written statement of

reasons........................................................................................................... 8

There is no conflict of authority warranting this Court’s review. ... 10

C. Even if federal law required written findings, this case is a poor

vehicle for review because the district court did issue written findings

and the record shows extensive review of Johnson’s application. ........... 12

II. The lower courts correctly declined to certify Johnson’s Batson claim. 14

III. The lower courts correctly declined to certify Johnson’s defaulted claim

that trial counsel was ineffective. ........................................................... 20

Conclusion .......................................................................................................... 25

Table of Authorities

Cases

Batson v. Kentucky, 476 U.S. 79 (1986) ............................................................ 17

Buck v. Davis, 137 S. Ct. 759 (2017) ................................................................... 9

Dansby v. Hobbs, 691 F.3d 934 (8th Cir. 2012) ................................................ 11

Felkner v. Johnson, 562 U.S. 594 (2011) .......................................................... 16

Flowers v. Mississippi, 139 S.Ct. 2228 (2019) .................................................. 18

Gonzalez v. Thaler, 565 U.S. 134 (2012) ............................................................. 9

Hernandez v. New York, 500 U.S. 352 (1991) .................................................. 16

Jones v. Barnes, 463 U.S. 745 (1983) ................................................................ 24

Marshall v. Lonberger, 459 U.S. 422 (1983) ..................................................... 16

Martinez v. Ryan, 566 U.S. 1 (2012) ........................................................... 21, 24

Miller-El v. Cockrell, 537 U.S. 322 (2003) .............................................. 9, 13, 19

Murphy v. Ohio, 263 F.3d 466 (6th Cir. 2001) ................................................. 14

Rhoades v. Davis, 852 F.3d 422 (5th Cir. 2017) ............................................... 19

Ringo v. Roper, 472 F.3d 1001 (8th Cir. 2007) ................................................. 23

Rompilla v. Beard, 545 U.S. 374 (2005) ........................................................... 23

Slack v. McDaniel, 529 U.S. 473 (2000) ....................................................... 8, 10

Smith v. Robbins, 528 U.S. 259 (2000) ............................................................. 24

Strickland v. Washington, 466 U.S. 668 (1984) ................................... 21, 23, 25

Wiggins v. Smith, 539 U.S. 510 (2003) ............................................................. 23

Statutes

28 U.S.C. § 2244 ................................................................................................... 8

28 U.S.C. § 2253(c) ............................................................................... 8, 9, 10, 11

28 U.S.C. § 2254(d) ........................................................................................ 4, 20

28 U.S.C. § 2254(e)....................................................................................... 17, 20

Statutes Involved

28 U.S.C. § 2254(d)

(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 the State

court proceeding.

Statement of the Case

Kevin Johnson ambushed and shot Sgt. William McEntee, an officer in

the Kirkwood, Missouri Police Department. After Johnson’s initial shots

wounded Sgt. McEntee, leaving him kneeling and helpless, Johnson executed

him. A St. Louis County jury found Johnson guilty of first-degree murder and

sentenced him to death.

Around 5:20 p.m. on July 5, 2005, Kirkwood police began searching the

Meacham Park neighborhood for Johnson or his vehicle because they were

attempting to serve Johnson with an outstanding arrest warrant. App. 107; Tr.

at 1220–21, 1225–27, 1272. The investigation was interrupted at 5:30 p.m.

when Johnson’s younger brother, Joseph Long, had a seizure in the house next

door to where Johnson stayed. App. 107; Tr. at 1232–35. Long’s family sought

help from the police, who provided assistance until an ambulance and

additional police, including Sgt. McEntee, arrived. App. 107; Tr. at 1184–85,

1190–91, 1232, 1240. Long was taken to the hospital, where he passed away

from a preexisting heart condition. Tr. at 1197–99, 1780–83. Johnson was next

door while police and paramedics tried to save Long’s life. App. 107. The police

did not see Johnson, suspended their search for him, and left the area. App.

107.

Despite police officers’ efforts to save his brother’s life, Johnson blamed

the police for Long’s death. App. 107; Tr. at 1424–26. After the police left,

Johnson told one of his friends that he believed the police were not trying to

help Long and were too busy looking for Johnson. App. 107; Tr. 1424–26.

Later that evening, Sgt. McEntee responded to a call in his patrol car

and was questioning three children about fireworks reported in the area. App.

107; Tr. at 1127–28, 1294–96, 1318–19, 1380–83. Without warning, Johnson

approached Sgt. McEntee’s patrol car, put his gun through the open passenger

side window, and fired at Sgt. McEntee and the children. Johnson’s shots

injured one of the children and hit Sgt. McEntee in the leg, head and torso.

App. 107; Tr. at 1299–1303, 1441–45; Johnson then got inside the patrol car

and took Sgt. McEntee’s gun. App. 107; Tr. at 1181–21.

Johnson walked down the street and spoke to his mother and her

boyfriend. App. 107; Tr. at 1654. Johnson told his mother that Sgt. McEntee

“let my brother die, he needs to see what it feel[s] like to die.” App. 107; Tr. at

1654. Johnson’s mother responded, “that’s not true.” App. 107; Tr. at 1654.

Johnson left his mother, and eventually returned to the scene of the shooting.

App. 107; Tr. at 1351–52, 1672–75.

While Johnson was gone, Sgt. McEntee’s patrol car rolled down the

street, hit a parked car, and then hit a tree before coming to rest. App. 107; Tr.

at 1349, 1668–72. Sgt. McEntee got out of his patrol car and was alive and on

his knees when Johnson returned. App. 107–08; Tr. at 1351–52, 1672–75. Sgt.

McEntee was bleeding from the mouth and could not speak. App. 107; Tr. at

1673–74. Johnson approached Sgt. McEntee, who knelt helplessly in the street.

App. 107–08; Tr. at 1353–54. Johnson then shot Sgt. McEntee in the head,

killing him. App. 108.

The jury convicted Johnson of first-degree murder and found three

statutory aggravating circumstances: 1) in killing Sgt. William McEntee,

Johnson acted in a way that created a great risk of death to other individuals;

2) the murder of Sgt. William McEntee involved depravity of the mind making

the murder wantonly vile, horrible, and inhumane; and 3) Sgt. William

McEntee was a peace officer engaged in the performance of his official duties

at the time of the murder. App. 108. The jury returned a verdict recommending

a sentence of death. App. 108 The trial court agreed with the jury’s

recommendation and sentenced Johnson to death. App. 108.

Reasons for Denying the Petition

There is no support for Johnson’s argument that a court of

appeals must issue a reasoned opinion when it denies a

certificate of appealability.

This Court should deny certiorari on Johnson’s first question presented

because no law supports Johnson’s argument and there is no conflict worthy of

this Court’s review.

The well-established legal standards for reviewing a

certificate of appealability do not require courts to issue a

written statement of reasons.

In a habeas proceeding under 28 U.S.C. § 2244, state prisoners have no

right to an automatic appeal from the denial of a federal habeas petition. 28

U.S.C. § 2253(c)(1). A petitioner may not appeal a district court’s final order

“[u]nless a circuit justice or judge issues a certificate of appealability.” 28

U.S.C. § 2253(c). For a certificate to issue, the petitioner must make “a

substantial showing of the denial of a constitutional right.” 28 U.S.C. §

2253(c)(2). Additionally, a judge issuing a certificate must “indicate what

specific issue or issues” are certified for appeal. 28 U.S.C. § 2253(c)(3). Yet

nothing in the statute requires a court to explain why it has declined to issue

a certificate.

Nor does this Court’s precedent require such an explanation. The

certificate-of-appealability requirement mandates “a threshold inquiry into

whether the circuit court may entertain an appeal.” Slack v. McDaniel, 529

U.S. 473, 482 (2000). The certificate process “screens out issues unworthy of

judicial time and attention and ensures that frivolous claims are not assigned

to merits panels.” Gonzalez v. Thaler, 565 U.S. 134, 145 (2012). In this way,

certification review serves an important gatekeeping function. Miller-El v.

Cockrell, 537 U.S. 322, 337 (2003).

The certificate analysis “is not coextensive with merits analysis.” Buck

v. Davis, 137 S. Ct. 759, 773 (2017). This Court has cautioned that the courts

of appeals should not engage with the merits of a petitioner’s claim in order to

justify denying a certificate. Id. (quoting Miller-El, 537 U.S. at 337). Courts

reviewing issues for certification conduct a limited review necessary to

determine the need for a certificate instead of deciding the full merits of a

petitioner’s case.

To receive a certificate, a petitioner must make “a substantial showing

of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), by

“demonstrating that jurists of reason could disagree with the district court’s

resolution of his constitutional claims or that jurists could conclude the issues

presented are adequate to deserve encouragement to proceed further.” MillerEl, 537 U.S. at 327. If the district court denies a petition on procedural grounds,

a certificate is only appropriate if “jurists of reason” could disagree as to both

“whether the petition states a valid claim of the denial of a constitutional right”

and “whether the district court was correct in its procedural ruling.” Slack, 529

U.S. at 484.

Applying these standards, the district court and Eighth Circuit declined

to issue a certificate of appealability on any of Johnson’s claims for habeas

relief. App. 8, 9–17. In his first question presented for this Court’s review,

Johnson does not challenge the decision to deny a certificate. Instead, he asks

this Court to read Miller-El and Slack to require an additional procedural step

not found in the text of section 2253. Nothing requires the courts of appeals to

issue written opinions when denying a certificate of appealability.

There is no conflict of authority warranting this Court’s

review.

Johnson tries to manufacture a circuit split by arguing that the Eighth

Circuit has a practice of declining to issue written opinions when denying a

certificate of appealability that is unique among federal courts of appeal. Pet.

at 13–14. But the only on-point case Johnson has identified undermines his

position, and his review of court-of-appeals practice shows that federal courts

have discretion in deciding whether to issue written findings denying a

certificate of appealability. Pet. at 13–14.

Johnson cites only one case that is directly relevant to the question

presented, Dansby v. Hobbs, 691 F.3d 934, 936 (8th Cir. 2012), and that case

counsels against Johnson’s argument. In Dansby, the Eighth Circuit found

that neither section 2253 nor this Court’s cases “dictate that a court of appeals

must or must not publish a statement of reasons when it denies an application

for a certificate.” Id. “Whether to issue a summary denial or an explanatory

opinion,” it continued, “is within the discretion of the court.” Id. Dansby is the

only case that Johnson cites concerning a court of appeals’s authority or

obligation to issue an opinion when denying a certificate. Pet. at 12–14. Thus,

there is no conflicting authority for this Court to clarify.

Johnson’s survey of court-of-appeals practice only supports the Eighth

Circuit’s analysis in Dansby. Johnson argues that the courts of appeals in other

circuits more frequently issue written opinions when denying a certificate of

appealability in capital cases. Pet. at 13. But, as Johnson admits, the courts of

appeals exercise discretion in deciding whether to write a written opinion. Pet.

at 13–14. Though the courts of appeals sometimes issue written explanations

when denying a certificate, they also deny certificates in summary orders. Pet.

at 13–14. As a result, there is no conflict in circuit practice. In this way, the

courts of appeals follow this Court’s example1 of issuing summary denials when

reviewing original applications for a certificate of appealability. See e.g.

Grayson v. Thomas, 10A917 (August 15, 2011); Milton v. Thaler, 10A1246

1 The provisions of § 2253(c) apply equally to a “circuit justice or judge”

that issues, or in Johnson’s view, denies a certificate of appealability.

(June 12, 2011) (denying application for certificate of appealability in a capital

case); Patrick v. United States, 03A1020 (September 3, 2004). There is no basis

for this Court to grant certiorari to examine the Eighth Circuit’s discretionary

decision in this case.

Even if federal law required written findings, this case is a

poor vehicle for review because Johnson did not preserve

this issue in the court of appeals and the record shows

extensive review of Johnson’s application.

Johnson did not preserve his claim that the Eighth Circuit violated

federal law in failing to issue written reasons for denying a certificate of

appealability. But even if he had preserved it, any error is harmless.

Johnson now alleges that “[t]he Eighth Circuit’s practice [of denying a

COA without explanation] is contrary to statute.” Pet. 12. But he did not

request that the administrative panel or even the merits panel provide reasons

for the denial of the certificate. Pet. C.A. Br. at 11–53. Nor did he argue to the

merits panel that the administrative panel erred in failing to give reasons. Pet.

C.A. Br. at 11–53. Johnson raised this argument for the first time in his

petition for rehearing en banc, and now raises it as his first argument for a

writ of certiorari. “This Court normally proceeds as a ‘court of review, not of

first view.’” United States v. Haymond, 139 S. Ct. 2369, 2385 (2019) (quoting

Cutter v. Wilkinson, 544 U.S. 709, 718 n.7 (2005)). Johnson cannot ask this

Court to convict the lower court of error that it did not have an opportunity to

address.

Even if Johnson’s claim were preserved, and written findings were

required, any error committed is harmless because Johnson has not been

prejudiced. The Eighth Circuit’s decision not to issue reasons for denying the

certificate does not “disable[] further proceedings,” by failing to provide a basis

for review on appeal. Pet. at 14. The administrative and merits panels had the

benefit of, and reviewed, the district court’s exhaustive sixty-page opinion

explaining the reasons it denied relief on Johnson’s claims. App. 18–77. The

court of appeals panels were also able to review the district court’s separate

memorandum explaining the reasons it declined to certify the claims for which

Johnson sought a certificate. App. 9–17. Unlike Miller-El, where this Court

found that the district court had not “give[n] full consideration to the

substantial evidence petitioner put forth,” 537 U.S. at 341, the district court in

this case clearly explained the reasons for denying Johnson’s claims and for

denying a certificate of appealability. App. 9–77.

On top of that, the Eighth Circuit reviewed Johnson’s application for a

certificate of appealability twice—once after briefing before an administrative

panel and again during briefing and argument on appeal from the denial of

Johnson’s motion to disqualify the district court judge. App. 6, 8. Each panel

(and now this Court) could review the district court’s findings when deciding

Johnson’s application for certification. Because the district court is already

“deeply familiar with the claims raised by [a] petitioner,” it is in a “far better

position” to make written findings about which claims should be certified.

Murphy v. Ohio, 263 F.3d 466, 467 (6th Cir. 2001). The district court’s thorough

opinions conclusively show that Johnson’s claims were not substantial, and no

judge on either panel thought otherwise.

II.

The lower courts correctly declined to certify Johnson’s

Batson claim.

Johnson also challenges the lower courts’ decisions denying a certificate

of appealability on Johnson’s claim that the trial court erred in allowing the

State to use a peremptory strike to remove venireperson Debra Cottman over

Johnson’s Batson objection. The district court and the Eighth Circuit properly

declined to certify the claim because no reasonable jurist could disagree with

the district court’s decision to defer to the Missouri Supreme Court’s factual

and legal findings on this claim.

At trial, Johnson objected to the prosecutor’s peremptory strike of

Cottman. Tr. at 1049. The State offered two reasons for its strike of Cottman:

1) that she was hesitant to answer questions about capital punishment and 2)

that Cottman worked for Annie Malone Children’s Home, which had provided

services to Johnson when he was a child. Tr. at 1051. When given a chance to

show that the prosecutor’s strikes were pretextual, defense counsel pointed out

that another juror had also worked for a foster care program at one time,

though it was not a program directly associated with Johnson. Tr. at 1052.

Johnson did not direct the court to any other evidence or arguments that he

wished the Court to consider as to the Batson challenge. Tr. at 1052–53.

Specifically, Johnson did not make any argument suggesting that the history

of the prosecutor’s office called into question the prosecutor’s credibility in its

reasons for striking Cottman. Tr. at 1052–53. The trial court found that there

was a racially neutral basis for the strike and overruled the Batson challenge.

Tr. at 1053.

On direct appeal, the Missouri Supreme Court found that the trial court

did not err in accepting the State’s racially neutral explanation for striking

Cottman. App. 110–11. The Missouri Supreme Court found that the record

shows that no other venire member was involved with Annie Malone

Children’s Home, and that the prosecution’s decision to strike Cottman based

on her involvement with Johnson’s childhood foster service was race-neutral.

App. 110–11. The Missouri Supreme Court found that “no evidence suggested

the State engaged in improper behavior to constitute a Batson violation”

involving Cottman. App. 111.

The Missouri Supreme Court also considered Johnson’s argument that

“the trial court’s previous experience with the prosecutor’s office” warranted

an inference that the reasons for striking Cottman were pretextual even

though that argument was not presented to the trial court. App. 11; Tr. at

1052–53. The court found that Johnson’s citations on direct appeal were not

sufficient to show a Batson violation absent allegations relating to the

prosecutor’s behavior in Johnson’s case. App. 111.

Under the applicable standards, no reasonable jurist could disagree with

the district court’s decision to defer to the Missouri Supreme Court and the

state trial court. An adjudication of a Batson challenge is based in significant

part on an “evaluation of credibility” which is entitled to great deference from

a reviewing court. Felkner v. Johnson, 562 U.S. 594, 598 (2011); Hernandez v.

New York, 500 U.S. 352, 364–69 (1991) (reviewing courts must accept

credibility determinations made regarding a prosecutor’s reasons for a

peremptory strike unless they are clearly erroneous). On habeas review,

federal courts follow a “highly deferential standard for evaluating state court

rulings” which are to “be given the benefit of the doubt.” Id. In reviewing

Johnson’s Batson challenge, the trial court found the prosecutor’s race-neutral

explanations for striking Cottman to be credible, and the Missouri Supreme

Court carefully reviewed the record in upholding the trial court’s decision to

reject the Batson challenge. In reviewing a state-court finding, federal courts

must give even greater deference to the trial court’s credibility determinations.

Marshall v. Lonberger, 459 U.S. 422, 435 (1983).

Johnson argues that his Batson claim is “at least debatable” because the

state court did not consider historical evidence that the St. Louis County

Prosecuting Attorney’s office had engaged in racial discrimination, because the

prosecutor did not ask Cottman additional questions about Annie Malone, and

because many other jurors gave similarly hesitant answers about capital

punishment. (Johnson Br. at pp. 23–26). None of these claims justify

overturning the state court’s credibility determinations. 28 U.S.C. § 2254(e).

Johnson’s argument for certiorari review fails at the outset because his

central premise—that the Missouri Supreme Court violated this Court’s

precedent by failing to consider his arguments about the history of the St.

Louis County prosecutor’s office—is false. The Missouri Supreme Court

considered and rejected the arguments Johnson made on direct appeal, finding

that his allegations and citations did not establish a Batson violation. App. 111.

Johnson correctly notes that this Court’s precedents have long required

courts reviewing Batson violations to consider “all evidence with a bearing” on

the plausibility of the prosecutor’s reason for striking a juror including

historical evidence of a prosecutor’s practice. Miller–El, 537 U.S. at 251–52;

Pet. at 15 (citing, inter alia, Batson v. Kentucky, 476 U.S. 79, 96 (1986)).

Contrary to Johnson’s claims, the Missouri Supreme Court correctly identified

and applied this Court’s directives. On direct appeal, the court considered:

a non-exclusive list of factors including: the explanation in light of

the circumstances; similarly situated jurors not struck; the

relevance between the explanation and the case; the demeanor of

the state and excluded venire members; the court’s prior

experience with the prosecutor’s office; and objective measures

related to motive.

App. 111. Johnson really complains that the Missouri Supreme Court did not

find his evidence and arguments about the prosecutor’s historical practice—

which he did not present to the state trial court—to be persuasive evidence of

a Batson violation in his case. That claim is not worthy of this Court’s review.

Johnson’s argument that the St. Louis County Prosecutor’s office has a

history of racially discriminatory strikes does not support his claim here. In

the federal courts below, Johnson cited to appellate cases and newspaper

articles that were not before the state trial court, and many that were not in

front of the state court on direct appeal. App. 13–14. Johnson presented no

evidence to indicate a pattern of activity that affected jury selection in this

case. App. 13–14, 46, 111. As the Missouri Supreme Court found, there is no

evidence in the record to support a finding that the prosecution engaged in

racially-motivated strikes in this case. App. 111. Johnson has done nothing to

rebut that factual finding.

Johnson’s citations to Flowers v. Mississippi, 139 S. Ct. 2228 (2019),

Miller–El, and other cases do not help him. In those cases, this Court

considered historical evidence of discrimination as part of a total set of

circumstances that showed discrimination in the defendant’s case at trial.

Here, unlike Flowers and Miller-El, the Missouri Supreme Court and the

district court found no evidence of a discriminatory pattern in Johnson’s case—

and the state trial court could not have considered this argument because it

was not presented to it.

The state courts found no evidence that the prosecutor’s strike of

Cottman was racially motivated. App. 111. Cottman’s hesitance to answer

questions about capital punishment and her direct connection to a foster home

where Johnson spent time as a child are race-neutral reasons to strike

Cottman. The trial court found the prosecutor’s reasons to be credible, and the

Missouri Supreme Court thoroughly reviewed the record and affirmed.

The remainder of Johnson’s arguments for certiorari merely ask this

Court to disagree with the Missouri Supreme Court’s holding on direct appeal

and instead agree with the dissenting opinion. Pet. at 17–21. Pointing to the

direct-appeal dissent, Johnson argues that the issuance of a certificate of

appealability should be “routine” when the state court is divided on a

constitutional question. (Pet. at 18) (citing Rhoades v. Davis, 852 F.3d 422, 429

(5th Cir. 2017)). Johnson’s argument ignores the applicable legal standard.

The standard is not whether reasonable jurists could disagree on the

merits of a petitioner’s claims when reviewing the claims de novo, but whether

reasonable jurists could disagree with the district court’s denial of claims

already decided by state courts under AEDPA’s highly-deferential standard.

Miller-El, 537 U.S. at 336. Even if this Court were inclined to relitigate

Johnson’s direct appeal, federal law forbids it. 28 U.S.C. § 2254(d). On federal

habeas review, this Court will reverse a state-court merits decision only if the

decision contradicted or unreasonably applied clearly-established federal law

or was based on an unreasonable determination of the facts. Id. Johnson makes

no argument that he could meet this standard. Pet. 17–21.

The Missouri Supreme Court applied this Court’s precedent to the facts

of Johnson’s case and found that the prosecutor’s reasons for striking Cottman

were race-neutral. There is no room for jurists to disagree that the state-court

decision was at least reasonable under 28 U.S.C. § 2254(d), so Johnson’s claim

does not warrant further appellate review.

III.

The lower courts correctly declined to certify Johnson’s

defaulted claim that trial counsel was ineffective.

In his final question presented, Johnson argues that the lower courts

should have certified his claim that his trial attorneys were ineffective for

failing to discover and present evidence about the violent community where

Johnson lived. Pet. at 23–31. Johnson makes no argument that this claim is

worthy of certiorari review under this Court’s rules. Sup. Ct. R. 10. Instead,

Johnson simply asks this Court to disagree with the lower courts’ conclusions

and grant a certificate of appealability where they would not. This Court will

not normally grant review of a petition “when the asserted error consists of

erroneous factual findings or the misapplication of a properly stated rule of

law,” as Johnson’s claim does. Id. There is no reason to depart from that rule

here.

Johnson’s claim fails to warrant review because the lower courts

correctly declined to certify Johnson’s claim for appeal. Johnson admitted that

he failed to raise this claim during state post-conviction review proceedings,

but argued that the district court should review the claim under the exception

announced in Martinez v. Ryan, 566 U.S. 1 (2012); Pet. at 29; App. 33. The

district court found that Martinez review was unwarranted because Johnson’s

underlying claim was not substantial.

The district court’s finding correctly applied this Court’s case law to the

facts of Johnson’s case. To prove his counsel was ineffective, Johnson would be

required to show that 1) his counsel’s performance was objectively

unreasonable, and 2) he was prejudiced as a result of his counsel's deficient

performance. Strickland v. Washington, 466 U.S. 668, 687–88 (1984). In his

petition, Johnson argued that counsel should have presented a number of facts

related to Johnson’s friends, family, and other people living in his

neighborhood but not necessarily related to Johnson’s personal background.

Dist. Dkt. 35 at 261–69.

At trial, Johnson called thirteen witnesses during the penalty phase. Tr.

at 2080–2290. The theme of the penalty phase was set forth in the opening

statement, which portrayed Johnson as the product of a family in which his

father was in prison and his mother was incapable of raising her children due

to her drug habit. Tr. at 2026–27. To flesh out the details of this view of

Johnson as the victim of neglect, abuse, and a system incapable of solving his

problems, Johnson called Ward (his grandmother) to testify about the family

history, including the absence of Johnson’s father due to a lengthy prison

sentence, and Johnson’s mother’s drug use and abusive conduct. Tr. 2080–90.

Trial counsel called additional family members, teachers, counselors, a

caseworker, Johnson’s friend, and a mental health professional to support

Johnson’s mitigation defense. Tr. at 2080–2290. Counsel argued that the

childhood abuse and neglect Johnson suffered caused psychological scars that

were reopened by the death of Johnson’s brother. App. 86.

Even though counsel presented substantial mitigation evidence, counsel

also had to limit cumulative evidence and evidence that did not fit the theme

of Johnson’s defense. App. 86. Counsel strategically limited testimony about

specific instances of abuse and neglect that Johnson suffered in his preschool

years because he believed he would lose the jury’s attention and focus if he

presented repetitive, cumulative evidence. App. 86. Counsel also limited

mental health testimony to avoid turning Johnson’s defense into a battle of

competing mental health experts. App. 86.

Counsel’s decision to focus on Johnson’s personal social history rather

than the general violence in his community is presumed to be reasonable and

Johnson failed to plead facts that could overcome that presumption.

Strickland, 466 U.S. at 689. As the district court found, counsel presented

“substantial evidence of [Johnson’s] childhood abuse and neglect,” and Johnson

cannot state a claim under Strickland by arguing that counsel should have

focused on different or additional details. App. 33–34 (citing Ringo v. Roper,

472 F.3d 1001, 1007 (8th Cir. 2007)).

None of this Court’s decisions require a different result. While the

Constitution requires counsel in a capital case to conduct an investigation for

mitigating evidence, Wiggins v. Smith, 539 U.S. 510 (2003); Rompilla v. Beard,

545 U.S. 374 (2005), no case requires counsel to engage in unlimited

investigations on the theoretical possibility that additional mitigation evidence

might exist. This Court has granted relief where counsel failed to conduct any

mitigation investigation beyond the presentencing report prepared by the

state, Wiggins, 539 U.S. at 523–24, and where counsel failed to investigate the

defendant’s prior convictions that formed the basis for the State’s case in

aggravation. Rompilla, 545 U.S. at 383–84. Neither of these cases apply here.

Unlike Wiggins and Rompilla, counsel conducted a thorough mitigation

investigation and presented numerous witnesses in mitigation according to a

strategic theme. Johnson’s assertions that counsel should have presented more

or different evidence is not sufficient to state a claim under this Court’s

precedents. The district court correctly found that Johnson’s claim is not

substantial under Martinez, and thus remains procedurally defaulted and

unworthy of further appellate review.

In addition, Johnson’s procedural default of this claim makes it a poor

vehicle for review. The district court found that Martinez review was

unwarranted because Johnson’s underlying claim was not substantial. App.

33. See Martinez, 566 U.S. at 14. Because the claim was not substantial, the

district court found it did not need to consider “whether petitioner’s initial postconviction counsel were ineffective.” App. 33. Even if this Court were inclined

to grant further review of Johnson’s claim, the question of post-conviction

counsel’s effectiveness would remain, and Johnson’s claim would likely fail on

that point.

To excuse his default under Martinez, Johnson must show that postconviction counsel was ineffective under Strickland’s standard. Post-conviction

counsel need not, and should not, raise every non-frivolous claim. Smith v.

Robbins, 528 U.S. 259, 288 (2000) (citing Jones v. Barnes, 463 U.S. 745 (1983)).

Rather, counsel should select from among potential issues in order to maximize

the likelihood of success. Id. “Generally, only when ignored issues are clearly

stronger than those presented will the presumption of effective assistance be

overcome.” Id. (citations omitted).

The record refutes Johnson’s claim that post-conviction counsel was

ineffective. The initial post-conviction motion raised fourteen claims for relief,

containing approximately thirty sub-claims, supported by two hundred ninety

three pages of allegations and argument. Dist. Dkt. #65-2 at 72–165, 65-3 at

166–363. At the evidentiary hearing held on Johnson’s motion, post-conviction

counsel presented nine witnesses across four days of testimony and presented

sixty-four exhibits. Dist. Dkt. #65-1. These claims were not clearly weaker than

Johnson’s claim that trial counsel was ineffective for failing to present

additional evidence or particular stories about the neighborhood where he

grew up. In the district court, Johnson failed to plead any non-conclusory facts

that could overcome the strong presumption that post-conviction counsel’s

representation was competent, so his claim could not justify Martinez review.

Strickland, 466 U.S. at 689; Dist. Dkt. 35 at 273. There is no basis for certiorari

review, so the Court should deny Johnson’s claim.

Conclusion

This Court should deny the petition for writ of certiorari.

Respectfully submitted,

ERIC S. SCHMITT

Attorney General

/s/Andrew J. Crane