Opposition Brief — Johnny A. Johnson, Petitioner v. Paul Blair, Warden

Supreme Court briefOct 12, 2022

Ask Donna

What actually matters in this document.

Text

No. 22-5542

________________________________________

In the Supreme Court of the United States

________________________

JOHNNY JOHNSON, PETITIONER

PAUL BLAIR, RESPONDENT

________________________

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Eighth Circuit

________________________________________

BRIEF FOR RESPONDENT IN OPPOSITION

________________________________________

ERIC S. SCHMITT

Missouri Attorney General

GREGORY GOODWIN

Chief Counsel, Public Safety Section

Counsel of Record

P. O. Box 899

Jefferson City, MO 65102

Gregory.Goodwin@ago.mo.gov

(573) 751-7017

Attorneys for Respondent

________________________________________

Capital Case

Questions Presented

1. Did Congress intend to require the Court of Appeals to issue opinions when

denying certificates of appealability when it did not include that requirement

in the statute?

2. Did the United States Court of Appeals violate federal law when it selected

from one of two statutory options provided by Congress?

3. Should this Court grant certiorari review to consider a claim of accumulated

prejudice when trial counsel’s performance was not deficient?

4. Did the Missouri Supreme Court fail to follow clearly established federal law

as announced by this Court when it declined to consider the cumulative

prejudicial effects of alleged trial counsel errors when this Court has never

announced that standard?

Table of Contents

Questions Presented ...................................................................................................... 2

Table of Contents ........................................................................................................... 3

Table of Authorities ....................................................................................................... 4

Opinions Below .............................................................................................................. 7

Jurisdiction .................................................................................................................... 7

Statement ....................................................................................................................... 8

Argument ..................................................................................................................... 13

I. This case is an exceptionally poor vehicle for addressing the questions

presented. .......................................................................................................... 13

Johnson’s petition was filed one day beyond the deadline. ....................... 13

Johnson did not timely press, and the courts below did not pass upon,

the federal question he presents for review. .............................................. 14

Johnson’s strategy of delay makes this case a poor vehicle. ..................... 15

II. The first and second questions presented fail to implicate a circuit split and

are otherwise unworthy of review. ................................................................... 16

No federal court must issue an opinion when denying a certificate of

appealability. ............................................................................................... 17

Neither § 2253 nor the Constitution require a federal court to issue a

certificate of appealability on the authority of a single judge. .................. 19

III.The third question presented is an academic question, because no court

below found trial counsel’s performance deficient, so any decision on

accumulated prejudice would be an advisory opinion. .................................... 22

IV. The fourth question presented is an unadorned request for error correction,

but there is no error for this Court’s review. ................................................... 25

Conclusion .................................................................................................................... 27

Table of Authorities

Cases

Anderson v. Collins, 495 U.S. 943 (1990).................................................................... 22

Baze v. Parker, 371 F.3d 310 (6th Cir. 2004) .............................................................. 27

Brown v. Davenport, 142 S. Ct. 1510 (2022) ............................................................... 27

Buck v. Davis, 137 S. Ct. 759 (2017) ........................................................................... 19

Bucklew v. Precythe, 139 S. Ct. 1112 (2019) ............................................................... 17

Burt v. Titlow, 571 U.S. 12 (2013)............................................................................... 26

Cacoperdo v. Demosthenes, 37 F.3d 504 (9th Cir. 1994) ............................................ 16

Coleman v. Thompson,501 U.S. 722 (1991) ................................................................ 25

Colvin v. Taylor, 324 F.3d 583 (8th Cir. 2003) ........................................................... 27

DeBenedetto v. Lumpkin, 141 S. Ct. 2697 (2021) ....................................................... 21

Flast v. Cohen, 392 U.S. 83 (1968) .............................................................................. 25

Giffin v. Sec’y, Fl. Dept. of Corr., 787 F.3d 1086 (11th Cir. 2015) ............................. 22

Gonzalez v. Thaler, 565 U.S. 134 (2012) ..................................................................... 18

Harrington v. Richter, 562 U.S. 86 (2011) .................................................................. 23

Hill v. McDonough, 547 U.S. 573 (2006)..................................................................... 17

Hohn v. United States, 524 U.S. 236 (1998) ............................................................... 21

Jackson v. Duckworth, 112 F.3d 878 (7th Cir. 1997) ................................................. 16

Johnson v. Blair, 4:13-CV-278-HEA (E.D. Mo. Feb. 28, 2020) ............................ 16, 24

Johnson v. State, 388 S.W.3d 159 (Mo. 2012) ........................................... 13, 15, 24, 25

Mathis v. Thaler, 564 U.S. 1031 (2011) ...................................................................... 21

McCleskey v. Zant, 449 U.S. 467 (1991) ...................................................................... 15

McNeil v. Adm'r New Jersey State Prison, CV 19-2069, 2019 WL 12249410 (3d Cir.

Dec. 5, 2019) ............................................................................................................. 16

Middleton v. Roper, 455 F.3d 838 (8th Cir. 2006) ...................................................... 27

Miller-El v. Cockrell, 537 U.S. 322 (2003) ............................................................ 18, 19

Missouri v. Jenkins, 495 U.S. 33 (1990)...................................................................... 14

Roberts v. Lubbers, 534 U.S. 946 (2001) ..................................................................... 21

Ross v. Moffitt, 417 U.S. 600 (1974) ............................................................................ 27

Shinn v. Ramirez, 142 S. Ct. 1718 (2022) ................................................................... 15

Slack v. McDaniel, 529 U.S. 473 (2000) ...................................................................... 18

State v. Johnson, 207 S.W.3d 24 (Mo. 2006) ............................................................... 13

Stoutamire v. La Rose, 140 S. Ct. 128 (2019) ............................................................. 21

Strickland v. Washington, 466 U.S. 668 (1984) .................................................... 25, 26

Taylor v. Bowersox, 571 U.S. 1233 (2014)................................................................... 21

Taylor v. Riojas, 141 S. Ct. 52 (2020).......................................................................... 27

Thompkins v. McKune, 433 Fed. App’x. 652 (10th Cir. 2011).................................... 16

Tyler v. Mitchell, 416 F.3d 500 (6th Cir. 2005) ........................................................... 16

Williams v. Taylor, 529 U.S. 362 (2000) ..................................................................... 23

Woods v. Donald, 575 U.S. 312 (2015) ........................................................................ 27

Statutes

18 U.S.C. § 3771 ..................................................................................................... 13, 17

28 U.S.C. § 1254(1) ........................................................................................................ 8

28 U.S.C. § 2101(c) ....................................................................................................... 14

28 U.S.C. § 2253 ......................................................................................... 18, 19, 20, 21

28 U.S.C. § 2254(d)(1) .................................................................................................. 26

Rules

Fed. R. App. Pro. 22(b)(2) ............................................................................................ 20

Other Authorities

Mary Shapiro, Friends remember Casey Williamson through safety fair, St. Louis

Post Dispatch May, 9, 2011, http://www.perma.cc/2JML-YS5E ............................ 12

Remembering Casey, http://www.rememberingcasey.com (last accessed Oct. 7, 2022)

.................................................................................................................................. 12

Resp. in Opp. to App. for Certificate of Appealability, Johnson v. Blair, 20-3529 (8th

Cir. Mar. 28, 2021) ................................................................................................... 16

Resp. in Opp. to Mot. for Extension of Time Johnson v. Blair, 20-3529 (8th Cir. Mar.

8, 2021) ..................................................................................................................... 16

In the Supreme Court of the United States

_____________

No. 22-5542

JOHNNY JOHNSON, PETITIONER

PAUL BLAIR, RESPONDENT

_____________

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Eighth Circuit

____________________

BRIEF FOR RESPONDENT IN OPPOSITION

________________________

Opinions Below

The judgment of the court of appeals is not published in the federal supplement

and is contained in the petitioner’s appendix. App. 1a. The opinion of the district court

is not published in the Federal Supplement but is available at 2020 WL 978038. App.

4a.

Jurisdiction

The judgment denying a certificate of appealability was entered on January

21, 2022. App. 1a. A petition for rehearing and rehearing en banc was denied on April

8, 2022. App. 55a. Justice Kavanaugh granted an extension of time and ordered that

the petition be filed on or before September 5, 2022. The petition for writ of certiorari

was filed on September 6, 2022. The jurisdiction of this Court is invoked under 28

U.S.C. § 1254(1).

Factual Statement

Johnny Johnson lured a six-year-old girl to a concrete pit, tried to rape her,

and then caved in her head with a boulder brick and a “rather large boulder” when

she would not yield to his advances. Johnson was convicted and sentenced to death.

His direct appeal and post-conviction relief efforts did not overturn his conviction,

and the district court and the court of appeals did not grant federal habeas corpus

relief. Johnson complains the Eighth Circuit did not use his preferred method to

process his application for a certificate of appealability, and he complains that the

state courts did not accumulate his separate claims of error into one claim. These

complaints are not worthy of this Court’s extraordinary review. The family members

of Johnson’s victim and the community have waited more than 20 years for justice;

they should wait no longer.

1. On a Thursday evening in July 2002, six-year-old Cassandra “Casey”

Williamson, her mother and father, and some family friends in the neighborhood were

having a cookout when they saw Johnny Johnson walking down the street. Tr. 821,

871–72. 1 Casey’s mother had known Johnson since he was three years old, and

Johnson had done nothing that caused Casey’s mother to suspect that Johnson was

suffering from mental illness. Tr. 869–70. While at the picnic, Casey’s mother and

others spoke with Johnson, and none of Johnson’s conduct suggested that he was

mentally ill. Tr. 869–70. Casey’s mother had a “nice conversation” with Johnson

1 Although

Johnson did not submit the trial transcript with his appendix,

Respondent will provide a copy upon request.

where there was no sign Johnson was mentally ill, unstable, or seeing things. Tr.

860–63. Johnson ended up spending the night on a couch in the home of Casey’s

father. Tr. 827.

On Friday morning, the alarm clock woke up Casey and her father. Tr. 826.

Casey’s father went downstairs to get ready before finding Casey something to eat,

and Casey’s father saw Johnson on the couch. Tr. 827. After spending 15 minutes in

the bathroom getting ready, Casey’s father came out and started looking for Casey.

Tr. 827–28. Casey and Johnson were gone. Tr. 828.

That Friday morning, a neighbor saw Johnson carrying a little girl on his back

while walking across a parking lot. Tr. 936–37. At about the same time, a motorist

also saw a man—later identified as Johnson—carrying a little girl—later identified

as Casey—on his back. Tr. 951, 953, 956–57. Johnson was smiling. Tr. 951.

Johnson took Casey to an abandoned glass factory. 2 In the glass factory, after

dropping down into a concrete pit, Johnson asked Casey if she wanted to see his penis.

Tr. 1290. Even though Casey said no, Johnson pulled down his shorts and exposed

his penis. Tr. 1291, 1377–78. Johnson then asked Casey to pull down her panties so

he could see her vagina. Tr. 1378. When she said no, Johnson grabbed Casey’s

underwear, tearing it off her and forcing her to the ground. Tr. 1379.

2 The glass factory was an abandoned, torn down factory surrounded by a

wooded area with trails that was a popular place for teenagers and children to play.

Tr. 834, 969–70, 972–73. The factory itself consisted of “the foundation, a few tunnels,

a few like ground structures. . . .” Tr. 970.

Johnson then got on top of Casey, pinned her to the ground with his chest, and

rubbed his penis on her leg to try to get an erection. Tr. 1379. Casey fought back,

scratching Johnson’s chest. Tr. 1379. Johnson got up and abandoned his attempts to

rape Casey, choosing to murder her instead. Tr. 1379. Johnson grabbed a brick and

hit Casey in the head at least six times. Tr. 1379, 1432–35. Casey ran around the pit,

leaving a trail of blood. Tr. 1136–37, 1156–59, 1195–98, 1228–30. After more blows

from Johnson, Casey could not run so she tried to crawl away. Tr. 1291. Johnson

continued to strike Casey with the brick, eventually fracturing her skull. Tr. 1291.

Because Casey would not stop moving, Johnson lifted a “rather large boulder” over

his head and brought it down on Casey’s head and neck, breaking her skull. Tr. 1291,

1424–25, 1430. Johnson then wiped blood off the victim’s face with her underpants,

threw them in another opening in the wall, and tossed some rocks, leaves, and other

debris in the pit on to the victim’s body. Tr. 1054–55, 1116–17, 1136, 1140, 1291–92,

1380. Johnson climbed out of the pit, went back through the tunnel, and headed down

to the nearby Meramec River to wash the victim’s blood and other trace evidence from

his body. Tr. 1291–92, 1380. A construction worker saw Johnson, shirtless, walking

up from the bottom of a boat ramp on the Meramec River that same Friday morning

with a hateful look on his face. Tr. 962, 966, 970–71.

That morning, officers found Johnson near Casey’s home and asked Johnson if

he would speak with them. Tr. 1014–15. Johnson agreed. Tr. 1015. Johnson

spontaneously stated that he “wouldn’t hurt little kids” because he “had one of his

own.” Tr. 1015. Johnson told officers that he had been swimming in the river that

morning but denied going through the glass factory to get to the river. Tr. 1016. The

officer found this odd because traveling through the glass factory was the most direct

route for Johnson to get to the river. Tr. 1017. Johnson eventually confessed his

crimes to the officers over the course of multiple interviews on the same day.

Meanwhile, a searcher found Casey’s foot underneath a pile of rocks inside a

five-feet-deep concrete chamber that was only accessible by crawling through a

tunnel. Tr. 1054–57. There was “a piece of concrete that probably weighed a hundred

pounds right up where [Casey’s] head would be.” Tr. 1057.

2. Johnson called eight witnesses at trial designed to present a defense that

Johnson could not deliberate because of his alleged mental illness. Tr. 1446–1793.

The jury convicted Johnson. During the sentencing phase, the State presented victim

impact evidence and evidence of Johnson’s convictions for seven criminal offenses and

two ordinance violations, that included convictions for second-degree burglary, felony

and misdemeanor stealing, property damage, and an “indecent act.” Tr. 1986–2032.

Johnson called seventeen witnesses to present evidence of Johnson’s personal and

family history and evidence of Johnson’s alleged mental health issues. Tr. 2033–2265.

The jury found all three of the submitted statutory aggravating circumstances: that

the murder was outrageously wanton and vile, that the murder was committed while

committing the offense of kidnapping, and that the murder was committed while

committing the offense of attempted forcible rape. The jury, through its verdict, also

found that the aggravating circumstances outweighed the mitigating circumstances

Johnson presented and that he was not deserving of mercy.

After his conviction, Johnson brought a direct appeal, which the Missouri

Supreme Court denied. State v. Johnson, 207 S.W.3d 24 (Mo. 2006). This Court denied

certiorari review. Johnson v. Missouri, 550 U.S. 971 (2007). Johnson then returned

to state court and sought post-conviction relief, which the trial court has denied. The

Missouri Supreme Court affirmed the denial of post-conviction relief. Johnson v.

State, 388 S.W.3d 159 (Mo. 2012). Johnson petitioned for federal habeas relief, which

the district court denied without issuing a certificate of appealability. Johnson

requested a certificate of appealability from the Eighth Circuit, which was denied by

the panel.

3. Congress has enacted a victim’s crime statute, and extended some rights to

victims of a defendant who has a pending federal habeas action. 18 U.S.C. § 3771.

Respondent has communicated with Casey’s family, and they have informed

Respondent of their hope that Casey will be remembered for more than just her tragic

murder. Casey’s family has created various public events, memorials, and

scholarships in her honor. See, e.g., Mary Shapiro, Friends remember Casey

Williamson through safety fair, St. Louis Post Dispatch May, 9, 2011,

http://www.perma.cc/2JML-YS5E;

see

also

Remembering

http://www.rememberingcasey.com (last accessed Oct. 7, 2022).

Casey,

Argument

This case is an exceptionally poor vehicle for addressing the questions

presented.

Johnson’s petition arrives at this Court one day beyond the statutory deadline,

devoid of the necessary steps to present a live issue and filled with evidence of

Johnson’s delay. As a result, this petition presents an exceptionally poor vehicle for

the Court to consider the questions presented.

Johnson’s petition was filed one day beyond the deadline.

Johnson filed his petition 151 days after the Eighth Circuit denied rehearing

en banc, and thus one day after the statutory deadline and Justice Kavanaugh’s order

allowed. Johnson requested a sixty-day extension of time, and requested that Justice

Kavanaugh order the petition to be filed no later than September 6, 2022. Justice

Kavanaugh, following the commands of 28 U.S.C. § 2101(c), granted Johnson sixty

additional days—not sixty-one—and ordered that the petition be filed no later than

Monday, September 5, 2022. Johnson did not comply, and instead mailed his petition

on the 151st day: September 6, 2022. Pet. 1–2. Presumably, Johnson will claim that

because September 5, 2022, was a federal holiday, this Court’s Rule 30 applies to the

order granting, in part, the application for an extension of time. See Rule 30.1

(extending the last day of a time period “until the end of the next day that is not a . .

. federal legal holiday . . . .”). Because § 2101(c) is “mandatory” and “jurisdictional,”

if the Court grants certiorari, then it must consider the interplay between its rules

and § 2101(c) and the effect of disobeying the Circuit Justice’s decision to deny

Johnson September 6, 2022, as the last day to file. Missouri v. Jenkins, 495 U.S. 33,

45 (1990) (“We have no authority to extend the period for filing except as Congress

permits.”).

Johnson did not timely press, and the courts below did not pass

upon, the federal question he presents for review.

Johnson’s untimely petition also fails to present a live question to the Court

because none of Johnson’s arguments were advanced to the correct courts at the

correct time. Johnson’s complaints about accumulated prejudice were never

presented to the Missouri courts. Johnson v. State, 388 S.W.3d 159, 163–166; 168–69

(Mo. 2012). So, under AEDPA, those claims are procedurally defaulted. Shinn v.

Ramirez, 142 S. Ct. 1718, 1743 (2022). Johnson has never advanced a reason to excuse

that default.

Similar to his state court briefing, Johnson did not timely present his

accumulated-error claim to the district court. Instead, Johnson waited until his reply

(traverse) to raise the claim. Doc. 69, Johnson v. Blair, 4:13-CV-278-HEA (E.D. Mo.).

Johnson’s untimely presentation of his claim in federal court makes this case a poor

vehicle. See McCleskey v. Zant, 449 U.S. 467, 488 (1991) (holding that, pre-AEDPA,

arguments raised for the first time in a fourth habeas petition are an abuse of the

writ).

In his current petition, Johnson all but admits that he did not raise this

accumulated prejudice claim in his habeas petition in district court. Pet. at 18 (citing

the reply and not the habeas petition). A petitioner may not raise a claim for the first

time in his reply (traverse). 3 See Rule 2(c)(1), Rules Governing Section 2254 Cases in

the United States District Courts (“The petition must . . . specify all grounds for relief

available to the petitioner.”); see also McNeil v. Adm'r New Jersey State Prison, CV

19-2069, 2019 WL 12249410, at *1 (3d Cir. Dec. 5, 2019) (not reported); Tyler v.

Mitchell, 416 F.3d 500, 504 (6th Cir. 2005); Jackson v. Duckworth, 112 F.3d 878, 880

(7th Cir. 1997); Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994);

Thompkins v. McKune, 433 Fed. App’x. 652, 660 (10th Cir. 2011). Because Johnson

failed to timely present this claim to the federal district court in his habeas petition,

no lower court has seen the question that Johnson asks this Court to consider.

Separately, Johnson’s complaints that the Eighth Circuit’s certificate of

appealability process violates federal law were not raised or briefed in the application

or the reply, but Johnson instead saved them for rehearing and for this Court. So

again, Johnson presented untimely claims at a procedurally improper moment,

denying the initial reviewing court the opportunity to address these arguments—a

common thread in this capital litigation.

Johnson’s strategy of delay makes this case a poor vehicle.

Johnson has unnecessarily delayed this capital litigation by raising claims too

late and by requesting continuances in excess of several years. In the district court,

Johnson requested 853 days—more than two years—to file his reply to the petition.

See Johnson v. Blair, 4:13-CV-278-HEA (E.D. Mo. Feb. 28, 2020).

Likewise, Johnson cannot obtain an order from this Court directing the

Eighth Circuit to consider whether it should reverse the district court for denying a

claim that was not raised until the reply.

Johnson’s delay persisted through the Eighth Circuit. Once there, Johnson

sought delay after delay, even filing extension requests the day his application was

due. By making requests on the due date, the delay became a fait accompli. See, e.g.,

C.A. Resp. in Opp. to Mot. for Extension of Time at 3, Johnson v. Blair, 20-3529 (8th

Cir. Mar. 8, 2021). Johnson’s application presented a collection of arguments largely

copied and pasted from a previously unsuccessful brief without informing the Eighth

Circuit that its decision in that case dictated denial of Johnson’s application. C.A.

Resp. in Opp. to App. for Certificate of Appealability at 4, Johnson v. Blair, 20-3529

(8th Cir. Mar. 28, 2021).

At bottom, Johnson’s litigation strategy has manifested delay after delay.

Missouri and the victims of his crimes have “an important interest in the timely

enforcement of a sentence.” Bucklew v. Precythe, 139 S. Ct. 1112, 1134 (2019) (quoting

Hill v. McDonough, 547 U.S. 573, 584 (2006)); 18 U.S.C. § 3771(a)(7). Johnson’s

strategy highlights concerns about capital defendants using legal processes for

unnecessary delays.

Even if the Court finds the petition’s questions potentially interesting, this

untimely, claims-defaulted, and dilatory petition does not deserve this Court’s review.

The Court should review a petition that cleanly presents the merits without the

procedural obstacles created by Petitioner.

II.

The first and second questions presented fail to implicate a circuit

split and are otherwise unworthy of review.

Johnson’s first question complains that the Eighth Circuit does not issue

written opinions when denying certificates of appealability. Johnson does not show

the Eighth Circuit has violated any statute or the existence of a meaningful split

between the circuits. Johnson’s second question presented, likewise asserts that a

single circuit judge should be empowered to grant a certificate of appealability.

Johnson’s complaints do not warrant this Court’s extraordinary review.

A. No federal court must issue an opinion when denying a certificate

of appealability.

The statutes are clear; state prisoners have no right to an automatic appeal

from a district court’s denial of federal habeas relief. 28 U.S.C. § 2253(c)(1). Congress

has authorized a prisoner to appeal only when “a circuit justice or judge issues a

certificate of appealability.” § 2253(c). For a certificate to issue, the petitioner must

make “a substantial showing of the denial of a constitutional right.” § 2253(c)(2).

Additionally, a certificate, if granted, must “indicate what specific issue or issues” are

certified for appeal. § 2253(c)(3). Congress chose to impose no other procedural rules

on federal courts, including a requirement that the Court of Appeals issue a written

opinion. § 2253.

Without any statutory mandate, this Court has not chosen to impose a judicial

mandate. Instead, this Court has explained that the certificate of appealability

requirement mandates only “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, certificate 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

whether a certificate should issue need only conduct a limited review necessary to

determine the need for a certificate—not the full merits of a petitioner’s case. Id.

This Court has explained the standard that applies in that limited review of

certificate of appealability applications. To receive a certificate, a petitioner must

make “a substantial showing of the denial of a constitutional right,” § 2253(c)(2), by

showing “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.” Miller-El, 537 U.S. at 327.

Applying these standards, both the district court and the Eighth Circuit

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

relief. Pet. App. 1a. In his first question presented, Johnson only alleges that the

Eighth Circuit “failed to conduct a reasoned analysis . . . .” Pet. App. 21a. But the

Eighth Circuit “carefully reviewed the original file of the district court and the

parties’ submissions . . . .” Pet. App. 1a. Unsatisfied with this answer, Johnson asks

this Court to read Miller-El and Slack to require an additional procedural step not

found in the text of § 2253, namely that the Eighth Circuit be required to issue an

opinion when denying a certificate of appealability. Nothing requires a court of

appeals, or this Court, to issue written opinions when denying a certificate of

appealability—and it would controvert Congress’s expressed intent that certificates

of appealability would properly limit judicial resources to worthy habeas petitions. 4

Along with these unsupported arguments, Johnson attempts to manufacture a

circuit split, arguing that “[t]he Eighth Circuit’s [certificate of appealability] practice

is outside of the mainstream . . . .” Pet. App. 22a. But Johnson cannot cite a single

authority for the proposition that a circuit court must issue an opinion when denying

a certificate of appealability. Pet. App. 23a–24a. Indeed by failing to raise this issue

in his application for a certificate of appealability, he also denied the Eighth Circuit

the opportunity to review this claim and address any contrary authority or practice.

Thus the Petition, like the applications for a certificate of appealability, cite no

conflicting decisions of the courts of appeals or analysis by the Eighth Circuit.

Therefore, no split in authority warrants review of Johnson’s first question presented.

Neither § 2253 nor the Constitution require a federal court to

issue a certificate of appealability on the authority of a single

judge.

Johnson’s second argument also fails to apply the text of the statute or this

Court’s precedent. In his second question presented, Johnson contends that if a circuit

judge dissents from the denial of a certificate of appealability, then the circuit court

has automatically violated § 2253. Pet. at 24–25. Yet, Johnson’s complaint is not

4 Although Johnson does not acknowledge this tension, any ruling by this Court

that § 2253 requires a written opinion to deny a certificate of appealability would, by

the statute’s terms, apply to this Court as well. And of course, the holding would apply

to federal habeas review of state convictions as well as review of federal convictions.

§ 2253(a) (“In a habeas corpus proceeding or a proceeding under section 2255 . . .”).

supported by the statutory text or by this Court’s precedent; and, again, Johnson

cannot show a circuit split worthy of this Court’s review.

Section 2253 provides that either a circuit justice or judge may issue a

certificate of appealability. § 2253(c)(1). And, as Johnson admits, the circuit courts

have adopted administrative rules to govern how those courts process applications

for certificates of appealability. Pet. at 24. The circuit courts may promulgate

procedural rules about certificates of appealability because Federal Rule of Appellate

Procedure 22(b) provides that authority. Fed. R. App. P. 22(b)(2) (“A request

addressed to the court of appeals may be considered by a circuit judge or judges, as

the court prescribes.”). This Court has agreed, holding “[i]t is more consistent with

the Federal Rules and the uniform practice of the courts of appeals to construe

§ 2253(c)(1) as conferring the jurisdiction to issue certificates of appealability upon

the court of appeals rather than by a judge acting under his or her own seal. Hohn v.

United States, 524 U.S. 236, 245 (1998); see also Randy Hertz & James S. Liebman,

§ 35.4 Initiating the Appeal, Federal Habeas Corpus Practice and Procedure (2022

ed.). That holding is consistent with this Court’s practice: when an application for a

certificate of appealability is submitted to the circuit justice in a capital case, he or

she will refer the application to the entire court. See, e.g., Roberts v. Lubbers, 534 U.S.

946 (2001); Mathis v. Thaler, 564 U.S. 1031 (2011); Taylor v. Bowersox, 571 U.S. 1233

(2014); Stoutamire v. La Rose, 140 S. Ct. 128 (2019); DeBenedetto v. Lumpkin, 141 S.

Ct. 2697 (2021).

Likewise, when an application for a certificate of appealability has been

referred to the Court, and when the Court has decided to deny the application over

the views of some members of the Court, then the Court has issued a summary denial

while noting which members of the Court would grant the application. See, e.g.,

Anderson v. Collins, 495 U.S. 943 (1990) (Mem.) (“The application for a certificate of

probable cause to appeal to the United States Court of Appeals for the Fifth Circuit

presented to Justice White and by him referred to the Court is denied. Justice

Brennan and Justice Marshall would grant the application.”).

Against this history, tradition, and straightforward application of appellate

principles, Johnson offers that other circuits have adopted different rules and that,

in his view, the Eighth Circuit grants too few applications for certificate of

appealability. Pet. at 24–25. Other circuits may have adopted different rules. But

those rules do not show that the Eighth Circuit’s panel procedure violates Federal

Rule of Appellate Procedure 22(b) or this Court’s holding in Hohn.

Johnson makes one final argument: that if a federal judge dissents from the

denial of a certificate of appealability, then the claim must automatically be debatable

by jurists of reason. Pet. 24–25. Here too, Johnson’s “self-evident” arguments prove

too little. Pet. 24. Johnson cites no cases—from this Court or any other—that hold

that a dissent from a single federal judge means a certificate of appealability must

issue. Such a formalistic rule would move certificate of appealability analysis from

an objective standard to a subjective standard, in violation of this Court’s precedent.

See, e.g., Giffin v. Sec’y, Fl. Dept. of Corr., 787 F.3d 1086, 1095 (11th Cir. 2015), cert.

denied sub nom. Giffin v. Jones, 136 S. Ct. 825 (2016) (citing Harrington v. Richter,

562 U.S. 86, 101 (2011) and Williams v. Taylor, 529 U.S. 362, 409–10 (2000) (opinion

of O’Connor, J.)).

Likewise, the different administrative rules adopted by the circuits do not

constitute a circuit split, and Johnson does not muster an argument that the

administrative rules of the Fourth and Ninth Circuit create a circuit split with the

Eighth Circuit. Pet. 25. Nor could he; a circuit split refers to “a decision in conflict

with another United States court of appeals on the same important matter . . . .” Rule

10(a). As a result, no circuit split exists on this question presented, and it does not

merit review.

III.

The third question presented is an academic question, because no

court below found trial counsel’s performance deficient, so any

decision on accumulated prejudice would be an advisory opinion.

In his next argument for certiorari review, Johnson alleges a split in authority

on whether, after finding multiple instances of deficient performance, a court should

accumulate the prejudicial effect of the multiple errors when determining that there

is a reasonable probability that the result of the proceeding would have been

different. Pet. 26–31. This case is a poor vehicle to consider that claim—because

Johnson did not present it timely to the district court and did not present it to the

state courts at all—as explained more fully in point I.B, supra. Aside from the vehicle

problems, Johnson’s complaint is academic because no court has ever found that his

trial counsel performed deficiently at all. Therefore, even if the petition was granted,

and Johnson prevailed, the Court’s decision would not reach the accumulated

prejudice question.

The Missouri Supreme Court was presented with, and denied, three claims of

ineffective assistance of counsel: (1) trial counsel should have called a

neuropsychologist; (2) trial counsel should have called Johnson’s teacher; and (3) trial

counsel should have presented more mental health evidence. Johnson, 388 S.W.3d at

163–166, 168–69. The Missouri Supreme Court rejected Johnson’s claims, finding

that trial counsel did not render deficient performance when not calling a

neuropsychologist because trial counsel consulted six other mental health experts

and after reviewing “extensive mental health and school records.” Johnson, 388

S.W.3d at 165. The Missouri Supreme Court also found trial counsel did not provide

deficient performance when not calling Johnson’s teacher because Johnson told

counsel not to call the teacher, because Johnson’s teacher would have provided

cumulative evidence, and because trial counsel contacted many of Johnson’s other

teachers. Id. at 166. Finally, the Missouri Supreme Court determined trial counsel’s

performance was not deficient when trial counsel did not adduce more mental health

evidence because Johnson’s claim relied on calling some expert to impeach the State’s

rebuttal witness and Johnson failed to identify who that witness would be. Id. at 168.

In his federal habeas petition, Johnson raised these same claims. Doc. 69, Johnson v.

Blair, 11–28, 4:13-CV-278-HEA (E.D. Mo. Feb. 28, 2020). The federal district court

likewise rejected Johnson’s arguments and found that his trial counsel was not

ineffective. Pet. App. 32a–47a. For each claim, the court determined that the Missouri

Supreme Court’s adjudication of the claim was reasonable and entitled to deference.

Pet. App. 38a, 42a, 46a.

Johnson does not challenge the Missouri Supreme Court’s or the district court’s

finding that trial counsel’s performance was not deficient. Pet. 26–31. Although mere

error is insufficient for obtaining this Court’s review, Petitioner must allege error

because this Court has held that a reviewing court may dispose of a Strickland claim

on either prong. Strickland v. Washington, 466 U.S. 668, 697 (1984). Here, the state

court analyzed both prongs of Strickland and found no deficient performance and no

prejudice. Johnson, 388 S.W.3d at 163–166, 168–69. This is fatal to Johnson’s petition

because this Court reviews judgments, not legal reasoning. Coleman v. Thompson,

501 U.S. 722, 730 (1991). This Court’s review of the accumulated prejudice question

would render, at most, an advisory opinion because Johnson has not requested a court

to find or shown that the lower courts erred when finding that trial counsel’s

performance was not deficient. Id. (“. . . if resolution of a federal question cannot affect

the judgment, there is nothing for the Court to do.”). To do so would violate this

Court’s longstanding rule against issuing advisory opinions. Flast v. Cohen, 392 U.S.

83, 96 n. 14 (1968) (“The rule against advisory opinions was established as early as

1793 . . . .”). This case does not necessarily present the question Johnson asks this

Court to review, and the Court should not make an exception to its settled rules here.

IV.

The fourth question presented is an unadorned request for error

correction, but there is no error for this Court’s review.

Johnson’s fourth question presented merely argues that the decisions below

incorrectly apply Strickland. Certiorari is not a venue for mere error correction, and

on top of that, there is no error in the analysis by the courts below.

AEDPA requires a federal court to accord deference to a state court’s decision

on the merits unless that decision is contrary to, or an unreasonable application of,

clearly established federal law as announced by the United States Supreme Court.

28 U.S.C. § 2254(d)(1). So, Johnson’s contention that the Missouri Supreme Court’s

decision is not entitled to deference because other courts of last resort and courts of

appeals apply a different test is irrelevant. Instead, a federal court reviewing a claim

under AEDPA’s “doubly deferential standard” must look to clearly established law as

announced by this Court. Burt v. Titlow, 571 U.S. 12, 15, 19 (2013). There is no

“clearly established Federal law as determined by the United States Supreme Court”

that requires courts to accumulate the prejudicial effect of multiple errors of trial

counsel.

Johnson, argues that this Court’s decision in Strickland requires a court to

consider the accumulated prejudicial effect of multiple trial counsel errors because

the Strickland decision uses the plural “errors” ten times in the opinion. Pet. 27. If,

as Johnson claimed, this Court’s cases require lower courts to accumulate the effect

of multiple instances of deficient performance, then Johnson would cite this Court’s

cases. He does not. This Court has denied certiorari on this question many times. See,

e.g., Scott McLaughlin v. Anne Precythe, 21-7660 (cert. denied June 21, 2022); Michael

Tisius v. Paul Blair, 21-8153 (cert. denied Oct. 3, 2022); Middleton v. Roper, 455 F.3d

838 (8th Cir. 2006), cert. denied Middleton v. Roper, 549 U.S. 1134 (2007); see also

Baze v. Parker, 371 F.3d 310, 330 (6th Cir. 2004) (holding that arguments for

accumulating prejudice are a “theory” that “depends on non-Supreme Court

precedent . . . .”).

It is unsurprising that this Court has declined to hear that argument. As the

Eighth Circuit has recognized, if another circuit has applied the same rule, then the

state court’s decision must be a reasonable—not an unreasonable—application of, or

contrary to, clearly established federal law. Colvin v. Taylor, 324 F.3d 583, 588 (8th

Cir. 2003). Colvin’s holding makes sense; federal habeas review is not “ordinary error

correction,” it is only for “extreme malfunctions in the state criminal justice systems.”

Woods v. Donald, 575 U.S. 312, 316 (2015); Brown v. Davenport, 142 S. Ct. 1510,

1523–24 (2022).

But even if Johnson had shown that the decisions below were wrong—which

he has not and cannot—then this Court should still not grant certiorari review

because Johnson, at most, has alleged mere error. This Court’s certiorari review is

not typically an avenue for mere error correction. Ross v. Moffitt, 417 U.S. 600, 616–

17 (1974) (“This Court’s review . . . is discretionary and depends on numerous factors

other than the perceived correctness of the judgment we are asked to review.”).

Johnson has requested summary reversal, but that is typically reserved for cases

“where it appear[s] that the lower court [has] conspicuously disregarded governing

Supreme Court precedent . . . .” Taylor v. Riojas, 141 S. Ct. 52, 55 (2020) (Alito, J.,

concurring). Neither are appropriate where, as in this case, the courts below correctly

applied the law.

Conclusion

This Court should deny the petition for writ of certiorari.

Respectfully submitted,

ERIC S. SCHMITT

Missouri Attorney General

/s/Gregory M. Goodwin

Gregory M. Goodwin

Chief Counsel, Public Safety Section

Missouri Bar No. 65929

Counsel of Record

P.O. Box 899

Jefferson City, MO 65102

Telephone: (573)751-7017

Facsimile: (573)751-2096

Gregory.Goodwin@ago.mo.gov

Attorneys for Respondent

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.