Respondents Brief — Johnny Johnson, Petitioner v. David Vandergriff, Warden

Nos. 23-5243 & 23A93

________________________________________

In the Supreme Court of the United States

________________________

JOHNNY JOHNSON, PETITIONER,

v.

DAVID VANDERGRIFF, RESPONDENT.

________________________

On Petition for Writ of Certiorari to the

Supreme Court of Missouri

________________________________________

BRIEF FOR MISSOURI IN OPPOSITION TO PETITION FOR WRIT OF

CERTIORARI AND SUGGESTIONS IN OPPOSITION TO MOTION FOR STAY

________________________________________

ANDREW BAILEY

Missouri Attorney General

GREGORY M. GOODWIN

Chief Counsel, Public Safety Section

Counsel of Record

ANDREW J. CLARKE

Assistant Attorney General

Attorneys for Respondent

________________________________________

Capital Case

Questions Presented

1. Should this Court grant certiorari review merely because Johnson complains

that the court below erred when it adjudicated his Ford 1 and Panetti 2 claim?

2. Should this Court grant certiorari review on Johnson’s claim that Ford and

Panetti’s “substantial threshold showing of incompetency” standard of review

is not favorable enough for petitioners?

3. Should this Court grant certiorari to consider Johnson’s complaints about how

the Missouri Supreme Court interprets state law?

1 Ford v. Wainwright, 477 U.S. 399 (1986).

2 Panetti v. Quarterman, 551 U.S. 930 (2007).

2

Table of Contents

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

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

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

Reasons for Denying the Application for Stay of Execution ........................................ 7

I. Johnson is not entitled to a stay of execution because he has not satisfied the

Hill factors. .......................................................................................................... 7

Brief in Opposition....................................................................................................... 14

Statement ..................................................................................................................... 14

Reasons for Denying the Writ ..................................................................................... 19

II. This case is a poor vehicle for addressing the questions presented. ............... 19

Johnson has unreasonably delayed in bringing this claim. ...................... 19

This Court should decline to issue a writ of certiorari to respect our system

of dual sovereignty....................................................................................... 22

Because this case is on collateral review, Johnson is ineligible to receive the

benefit of any new rule. ............................................................................... 23

III.Johnson’s request to “clarify” Panetti and Ford is an admission that this case

does not merit the Court’s extraordinary intervention, and that the Missouri

Supreme Court’s decision is not even erroneous. ............................................ 23

IV. Johnson’s implication that the Missouri Supreme Court might have violated

the Due Process Clause is meritless................................................................. 25

V. Johnson’s complaint about the Supreme Court of Missouri’s adjudication of his

claim is nothing more than a complaint about the Missouri Supreme Court’s

application of Missouri law. .............................................................................. 30

Conclusion .................................................................................................................... 32

3

Table of Authorities

Cases

Barber v. Ivey,

600 U.S. ---, 2023 WL 4669437 (July 21, 2023) ........................................................ 8

Blodgett v. C.I.R.,

394 F.3d 1030 (8th Cir. 2005) .................................................................................. 25

Bucklew v. Precythe,

139 S. Ct. 1112 (2019) .......................................................................................... 8, 21

Calderon v. Thompson,

523 U.S. 538 (1998) ............................................................................................ 11, 15

Cole v. Roper,

783 F.3d 707 (8th Cir. 2015) .............................................................................. 28, 31

Coleman v. Thompson,

501 U.S. 722 (1991) ...................................................................................... 14, 21, 31

Conner v. GDCP Warden,

784 F.3d 752 (11th Cir. 2015) .................................................................................. 30

Cullen v. Pinholster,

563 U.S. 170 (2011) .................................................................................................. 15

Dretke v. Haley,

541 U.S. 386 (2004) .................................................................................................. 23

Edwards v. Vannoy,

141 S. Ct. 1547 (2021) ........................................................................................ 19, 23

Ford v. Wainwright,

477 U.S. 399 (1986) .......................................................................................... passim

Fuentes v. Shevin,

407 U.S. 67 (1972) .................................................................................................... 28

Gamble v. United States,

139 S. Ct. 1960 (2019) ........................................................................................ 11, 15

Green v. Davis,

414 F.Supp.3d 892 (N.D. Tx. Sept. 27, 2019) .......................................................... 30

4

Hicks v. Oklahoma,

447 U.S. 343 (1980) .................................................................................................. 31

Hill v. McDonough,

547 U.S. 573 (2006) .......................................................................................... 7, 8, 21

In re Blodgett,

502 U.S. 236 (1992) .................................................................................................... 7

Jones v. Hendrix,

143 S. Ct. 1857 (2023) .............................................................................................. 14

Kyles v. Whitley,

498 U.S. 931 (1990) .................................................................................................. 22

Lawrence v. Florida,

549 U.S. 327 (2007) .................................................................................................. 22

Marks v. United States,

430 U.S. 188 (1977) .................................................................................................... 9

Marshall v. Longberger,

459 U.S. 422 (1983) .................................................................................................. 29

Nelson v. Campbell,

541 U.S. 637 (2004) ................................................................................................ 7, 8

Panetti v. Quarterman,

551 U.S. 930 (2007) .......................................................................................... passim

Ross v. Moffitt,

417 U.S. 600 (1974) ............................................................................................ 24, 25

Shinn v. Ramirez,

142 S. Ct. 1718 (2022) ...................................................................................... passim

State ex rel. Johnson v. Vandergriff,

668 S.W.3d 574 (Mo. 2023) .................................................................... 18, 25, 26, 29

State v. Jackson,

433 S.W.3d 390 (2014) ............................................................................................. 25

Students for Fair Admissions, Inc. v. President and Fellows of Harvard College,

143 S. Ct. 2141 (2023) .............................................................................................. 32

Teague v. Lane,

489 U.S. 288 (1989) .................................................................................................. 23

5

Woodford v. Garceau,

538 U.S. 202 (2003) .................................................................................................. 14

Younger v. Harris,

401 U.S. 37 (1971) .............................................................................................. 15, 22

Statutes

18 U.S.C. § 3771 ........................................................................................................... 21

28 U.S.C. § 1257 ........................................................................................................... 31

28 U.S.C. § 2254 ..................................................................................................... 20, 22

6

In the Supreme Court of the United States

_____________

No. 23-5243 & 23A93

JOHNNY JOHNSON, PETITIONER,

v.

DAVID VANDERGRIFF, RESPONDENT

_____________

On Petition for Writ of Certiorari to the

Supreme Court of Missouri

____________________

BRIEF FOR MISSOURI IN OPPOSITION TO PETITION FOR WRIT OF CERTIORARI

AND SUGGESTIONS IN OPPOSITION TO APPLICATION FOR STAY OF EXECUTION

________________________

Reasons for Denying the Application for Stay of Execution

I.

Johnson is not entitled to a stay of execution because he has not

satisfied the Hill factors.

This Court should deny Johnson’s request for a stay because Johnson has not

and cannot show that all of the four Hill factors weigh in his favor or even that any

do. In Hill, this Court explained:

We state again, as we did in Nelson, that a stay of execution is an

equitable remedy. It is not available as a matter of right, and equity

must be sensitive to the State’s strong interest in enforcing its criminal

judgments without undue interference from the federal courts.

Hill v. McDonough, 547 U.S. 573, 584 (2006) (citing Nelson v. Campbell, 541 U.S. 637,

649–50 (2004), and In re Blodgett, 502 U.S. 236, 239–240 (1992) (per curiam)). More

recently, this Court reaffirmed Hill and its holding, stating, “Both the State and the

7

victims of crime have an important interest in the timely enforcement of a sentence.”

Bucklew v. Precythe, 139 S. Ct. 1112, 1133 (2019) (quoting Hill, 547 U.S. at 584). And

just this month, three members of this Court reaffirmed that, in their view, Hill was

the governing standard. Barber v. Ivey, 600 U.S. ---, 2023 WL 4669437 at *4 (July 21,

2023) (Sotomayor, J. dissenting from the denial of application for stay). In order to

receive a stay, Johnson must make a “clear showing” that each of the four necessary

factors weigh in his favor: a strong likelihood of success on the merits, irreparable

injury, injury to other parties, and the public interest. Nelson, 541 U.S. at 650; Hill,

547 U.S. at 584.

As explained below, Johnson cannot make a strong showing of a strong

likelihood of success on the merits. Johnson’s claims are nothing more than

unadorned requests for error correction. Pet. 29–38. And even setting that aside,

Johnson’s claims fail after applying this Court’s precedents. Indeed, only if a prisoner

makes the necessary preliminary showing—a substantial threshold showing of

insanity—that he is incompetent to be executed, is he then entitled to a hearing. Ford

v. Wainwright, 477 U.S. 399, 426 (1986) (Powell, J, concurring). In Panetti v.

Quarterman, 551 U.S. 930, 948–49 (2007), this Court considered a claim under

AEDPA that Texas had unreasonably applied federal law in failing to hold a “fair

hearing” after conceding that Panetti made a substantial threshold showing of

incompetency. In so doing, this Court phrased the Ford rule as such:

Justice Powell’s opinion states the relevant standard as follows. “Once a

prisoner seeking a stay of execution has made ‘a substantial threshold

showing of insanity,’ the protection afforded by procedural due process

includes a ‘fair hearing’ in accord with fundamental fairness.”

8

Panetti, 551 U.S. at 949 (quoting Ford, 477 U.S. at 426). But this “fair hearing,” the

Panetti Court made clear, means only that the prisoner have an opportunity to be

heard, and “a constitutionally acceptable procedure may be far less formal than a

trial[.]” Id. (quoting Ford, 477 U.S. at 426). Indeed, the Ford concurrence (which this

Court has said is the controlling opinion of Ford under Marks v. United States, 430

U.S. 188 (1977)), “did not set forth ‘the precise limits that due process imposes in this

area[,]” and instead “observed that a State ‘should have substantial leeway to

determine what process best balances the various interests at stake’ once it has met

the ‘basic requirements’ required by due process.” Id. at 949–950 (quoting Ford, 477

U.S. at 427). “These basic requirements include an opportunity to submit ‘evidence

and argument from the prisoner’s counsel, including expert psychiatric evidence that

may differ from the State's own psychiatric examination.’” Id. at 950 (quoting Ford,

477 U.S. at 427).

Here, despite finding that Johnson failed to demonstrate a substantial

threshold showing of insanity, the Supreme Court of Missouri followed its own rule

and allowed Johnson to submit evidence and argument his counsel, including

psychiatric evidence that differed from the State’s evidence. This satisfied Ford’s

explicitly stated test and therefore assuredly falls within the substantial leeway that

Ford and Panetti recognized were left to state courts to balance the relevant interests

in competency proceedings. In the face of that straightforward analysis, Johnson

asserts three questions presented that are little more than loose complaints about

the procedure Missouri’s Supreme Court has chosen after Ford and Panetti. But these

9

three questions presented do not show that Johnson has a strong likelihood of success

on the merits. As will be discussed in greater detail below, Missouri’s Supreme Court

faithfully applied Panetti and Ford, and Johnson’s petition fails to state an error, let

alone a basis for the issuance of writ of certiorari.

In addition, the records requested by Johnson on July 31 and received by

Johnson on July 31 show that Johnson is not incompetent to be executed. After the

stay was entered by a panel of the Eighth Circuit, Johnson told the mental health

provider that he “feels ‘alright.’” Resp. App. A33. Johnson reported that the “brain

zaps” have stopped and that his sleep has improved. Id. Johnson also reported that

“the [auditory and visual hallucinations] and sense of demons or others messing with

him stopped in the same tiem [sic] frame.” Resp. App. A33. Johnson further reported

that he refuses his medicine when he feels “lazy.” Resp. App. A34.

On the second factor, Johnson fares no better; Johnson will not be irreparably

harmed by not being granted a stay to press the questions presented in his petition

before this Court because they are meritless and do not state a basis for certiorari

review.

Johnson has also failed to show that the next factors—injuries to the other

parties and the public interest—weigh in his favor. This Court has repeatedly

recognized the States’ important interests in enforcing lawful criminal judgments

without federal interference. “The power to convict and punish criminals lies at the

heart of the States’ ‘residuary and inviolable sovereignty.’” Shinn v. Ramirez, 142 S.

Ct. 1718, 1730 (2022) (quoting The Federalist No. 39, p. 245 (J. Madison) (Clinton

10

Rossiter ed. 1961)); see also Gamble v. United States, 139 S. Ct. 1960, 1968–69 (2019).

Federal intervention “disturbs the State’s significant interest in repose for concluded

litigation,” and it “undermines the States’ investment in their criminal trials.” Id.

(quotations and citations omitted). “Only with real finality can the victims of crime

move forward knowing the moral judgment will be carried out.” Id. (quoting Calderon

v. Thompson, 523 U.S. 538, 556 (1998)). “To unsettle these expectations is to inflict a

profound injury to the powerful and legitimate interest in punishing the guilty, an

interest shared by the State and the victims of crime alike.” Id.

The surviving victims’ of Johnson’s abduction, attempted rape, and murder of

six-year-old Casey Williamson will suffer a “profound injury” from any stay order. Id.

When a panel of the Eighth Circuit issued a stay order hours before the twenty-first

anniversary of Johnson’s crimes, the victims suffered mightily. The surviving victims

have endeavored to make meaning from Casey’s brutal murder. Casey’s family has

created various public events, memorials, and scholarships in her honor. See, e.g.,

Remembering Casey, http://www.rememberingcasey.org (last accessed July 25,

2023). Just days ago, Casey’s family held the 2023 Valley Park Safety Fair, designed

to “empower families and offer resources that could help prevent the devastating loss

of a child.” Joey Schneider, Valley Park holds safety fair in memory of Casey

Williamson, KMOV (July 22, 2023), https://fox2now.com/news/missouri/valley-parkholds-safety-fair-in-memory-of-casey-williamson. “Only with real finality can the

victims of crime move forward knowing the moral judgment will be carried

out.” Shinn, 142 S. Ct. at 1733 (quoting Calderon, 523 U.S. at 556).

11

A stay of execution would frustrate the State’s “significant interest in repose”

and would delay the justice that “real finality” provides. As Casey’s mother explained

in a declaration from July 26, 2023, the twenty-first anniversary of Johnson’s horrible

crimes against Casey, the Eighth Circuit’s previous stay was a “double whammy”

because it came so close to the anniversary of her daughter’s murder. Resp. App. at

A1 ¶6. Johnson’s crimes have already destroyed Casey’s family. Id. at A1 ¶3. Casey’s

mother now suffers from “anxiety, depression, PTSD, nightmares, insomnia, and

fibromyalgia.” Id. One of Casey’s sisters self-medicated because of the murder and

eventually “lost her life.” Id. Casey’s uncle has suffered a “mental breakdown,” and

Casey’s grandfather “drank himself to death following the death of Casey.” Id. Casey’s

mother “hoped [she] would receive closure on August 1, 2023, when Johnson was to

be executed.” Id. at A1 ¶5. The news of the stay has “consumed” Casey’s mother and

the prospect of a stay for months or years has greatly concerned Casey’s mother. Id.

at A2 ¶8. Casey’s mother is “so worried that [her] family will not be able to endure

litigation for months or years” but knows “that [she] cannot endure this litigation for

much longer.” Id. at A2 ¶13. For these reasons, the final two factors weigh against

Johnson. 3

3 Elsewhere, Johnson has suggested that Casey’s father does not wish for the

execution to go forward. Reply in Supp. of App. for Stay, *9, Johnson v. Vandergriff,

23-5147 (July 26, 2023). A recent news story casts doubt on that argument. See Dana

Rieck, Johnny Johnson killed their girl. They await his Missouri execution, after deep

family scars. St. Louis Post-Dispatch (https://www.stltoday.com/news/local/crimecourts/johnny-johnson-killed-their-girl-they-await-his-missouri-execution-afterdeep-family-scars/article_544e88ec-2bea-11ee-979f-776ae36cec14.html)(last

accessed July 31, 2023).

12

And even setting those factors aside, Johnson’s strategy of delay weighs

against a stay. Johnson filed this petition for certiorari on July 31, 2023, hours before

his scheduled execution. But Johnson is seeking certiorari review of a state court

decision that was issued nearly seven weeks ago—on June 8, 2023. Nothing

prevented Johnson from filing this petition on that same day, but he apparently chose

not to as a strategy of intentional delay. And, despite his execution being scheduled

less than fifty-four days after the Missouri Supreme Court’s denial, Johnson delayed

for fifty-three days before filing this petition.

In total, Johnson delayed for approximately 80 of the 104 days between the

issuance of his execution warrant and the date of his execution. This delay is

particularly troubling here because Missouri moved to set Johnson’s execution date

nearly three months before then on November 14, 2022, which put Johnson on notice

of his potential upcoming execution. Despite that advanced notice of the potential

that his execution date would be readily forthcoming, Johnson has—at every stage of

this now extremely protracted capital litigation—chosen delay for the sake of delay.

Moreover, Johnson appears to have failed to serve a copy of his petition on

counsel for the Warden. Johnson’s certificate of service reflects that the petition was

mailed to Assistant Attorney General Stephen Hawke, who has not been counsel of

record since March 4, 2017. 4 Undersigned counsel has conducted a search of his

4 On March 4, 2017, Assistant Attorney General Gregory M. Goodwin entered

his appearance in the United States District Court for the Eastern District of

Missouri and became counsel of record. Assistant Attorney General Goodwin handled

the remainder of the proceedings in the district court, the Eighth Circuit, this Court,

13

email, and undersigned counsel spoke with Assistant Attorneys General Hawke and

Clarke, and neither of them received a service copy of the petition. 5 Johnson’s

counsel’s failure to serve a copy of this petition on counsel for Respondent has resulted

in delay, and that delay is attributable to Johnson. See, e.g. Shinn, 142 S. Ct. at 1733

(“[T]he attorney is the petitioner’s agent when acting, or failing to act, in furtherance

of the litigation, and the petitioner must bear the risk of attorney error.” (quoting

Coleman v. Thompson, 501 U.S. 722, 753 (1991)). Johnson is not entitled to a stay.

Brief in Opposition

Statement

A.

Background

1.

Nearly thirty years ago, Congress passed the Antiterrorism and

Effective Death Penalty Act of 1996 (“ADEPA”) “to reduce delays in the execution of

state and federal criminal sentences, particularly in capital cases,” and “to further

the principles of comity, finality, and federalism.” Woodford v. Garceau, 538 U.S. 202,

206 (2003) (citation and quotations omitted and emphasis added). As part of this

process, Congress expressed a judgment on the “appropriate balance between finality

and error correction.” Jones v. Hendrix, 143 S. Ct. 1857, 1877 (2023). In light of the

carefully crafted balancing of interests, this Court has refused to create a

presumption against finality. Id. AEDPA imposes a “highly deferential standard” on

and the Missouri Supreme Court (with the assistance of Assistant Attorney General

Andrew Clarke).

5 Respondent discovered this certiorari petition after a clerk sent an email to

counsel of record before this Court.

14

federal courts that is “difficult [for petitioners] to meet.” Cullen v. Pinholster, 563 U.S.

170, 181 (2011).

Federalism, finality, and reducing the delays in the execution of state

sentences in capital cases are of incredible importance. “Our Federalism,” stands for

a system in which there is sensitivity to the legitimate interests of both

State and National Governments, and in which the National

Government, anxious though it may be to vindicate and protect federal

rights and federal interests, always endeavors to do so in ways that will

not unduly interfere with the legitimate activities of the States.

Younger v. Harris, 401 U.S. 37, 44 (1971). Federalism concerns are at their apex in

federal habeas because “[t]he power to convict and punish criminals lies at the heart

of the States’ ‘residuary and inviolable sovereignty.’” Shinn, 142 S. Ct. at 1730

(quoting The Federalist No. 39, p. 245 (J. Madison) (Clinton Rossiter ed. 1961)); see

also Gamble, 139 S. Ct. at 1968–69. Federal intervention “disturbs the State’s

significant interest in repose for concluded litigation,” and it “undermines the States’

investment in their criminal trials.” Id. (quotations and citations omitted). For the

same reasons, finality is important to the States as well. But finality has special

meaning for the victims of crime because “[o]nly with real finality can the victims of

crime move forward knowing the moral judgment will be carried out.” Id. (quoting

Calderon, 523 U.S. at 556). “To unsettle these expectations is to inflict a profound

injury to the powerful and legitimate interest in punishing the guilty . . . .” Id.

While Johnson asks this Court to issue a writ of certiorari directly to the

Supreme Court of Missouri, because Johnson seeks certiorari review related to his

15

state-court criminal conviction and sentence this Court’s review is informed by

AEDPA.

2.

Twenty-one years ago, Johnny Johnson took six-year-old Casey

Williamson to a concrete pit in an abandoned factory where he attempted to forcibly

rape her. 6 After pulling down his pants and exposing himself to her, Johnson tore

Casey’s underwear off her and forced her to the ground. Johnson pinned her to the

ground while he rubbed his penis on her leg. Casey resisted Johnson’s sexual

predation, scratching Johnson’s chest. Johnson then grabbed a brick and struck

Casey in the head at least six times. Casey continued to try to get away from Johnson,

even after she could no longer walk. As she tried to crawl away, Johnson continued

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

Johnson then lifted a boulder over his head and brought it down on Casey’s head and

neck, killing her. Johnson left Casey’s body in the pit, covering much of it with rocks,

leaves, and other debris. He left the abandoned factory and washed himself of Casey’s

blood in the Meramec River.

After completing the ordinary course of review, including federal habeas

review, Johnson filed a state habeas petition alleging that he was incompetent to be

executed. The Missouri Supreme Court took briefing and evidence and rejected

Johnson’s claim because, in part, his evidence was not credible.

6 The following description of the crime comes from the district court’s order

denying habeas relief in a related case (which is also has a pending petition for

certiorari before this Court), and is quoted without further attribution. Order,

Johnson v. Vandergriff, 4:23-CV-845-MTS (E.D. Mo. July 17, 2023).

16

3.

On July 25, 2023, mere hours before the twenty-first anniversary of

Casey’s abduction, attempted rape, and murder, a divided panel of the United States

Court of Appeals for the Eighth Circuit issued a stay of execution. Johnson v.

Vandergriff, 23-2664 (8th Cir. July 25, 2023); Resp. App. at A1 ¶6. After receiving the

news, Johnson’s victims have suffered. When Casey’s mother received the news so

close to the anniversary, it was a “double whammy,” and it “consumed” her. Resp.

App. at A1 ¶6; Resp. App. at A2 ¶8. But more than that, the news was “heart

wrenching and scary” because Casey’s mother “know[s] that [she] cannot emotionally

and physically do this again” since Casey’s mother has been “fighting for twenty-one

years to get justice for Casey.” Resp. App. at A2 ¶7. Finality will allow Casey’s mother

to “remember [her] daughter for who she was, not what happened to her.” Id. The

prospect that justice would be delayed “feels so unfair” to Casey’s mother because

“Johnson received twenty-one years that Casey never got the chance to have.” Resp.

App. at A2 ¶13. At bottom, Casey’s mother is “so worried that [her] family will not be

able to endure litigation for months or years. [Casey’s mother] knows that [she]

cannot endure this litigation for much longer.” Resp. App. at A2 ¶13. 7 The Eighth

Circuit’s stay was vacated by the Eighth Circuit en banc on July 29, 2023, Johnson

v. Vandergriff, 23-2664 (8th Cir. July 25, 2023), and Johnson has a separate petition

for writ of certiorari pending before this Court from that case.

7 Following the Eighth Circuit en banc court’s vacatur of the stay, counsel

contacted Casey’s mother to inform her of the news.

17

B.

Proceedings Below

1.

After the Missouri Supreme Court affirmed his convictions on direct

appeal and state-court post-conviction relief, Johnson began federal habeas review on

February 13, 2013. Johnson v. Steele, 4:13-CV-278-HEA (E.D. Mo. Feb. 13, 2013). The

district court denied relief and denied a certificate of appealability on February 28,

2020. Doc. 85, Johnson, 4:13-CV-278-HEA (E.D. Mo. Feb. 28, 2020). Johnson sought

a certificate of appealability from the United States Court of Appeals for the Eighth

Circuit, which denied a certificate on January 21, 2022. Johnson v. Blair, 20-3529

(8th Cir.). The Eighth Circuit denied rehearing and rehearing en banc on April 8,

2022. Id. This Court denied certiorari review on November 14, 2022. Johnson v. Blair,

22-5542 (Nov. 14, 2022). On the same date, Missouri filed a motion in the Supreme

Court of Missouri to set Johnson’s execution date.

2.

Nearly a month after the Supreme Court of Missouri issued its execution

warrant, Johnson filed a state habeas petition alleging he was incompetent to be

executed. State ex rel. Johnson v. Vandergriff, SC100077 (Mo. 2023). After receiving

briefing and evidence, the Missouri Supreme Court denied habeas relief in a written

opinion. State ex rel. Johnson v. Vandergriff, 668 S.W.3d 574 (Mo. 2023). The Missouri

Supreme Court found, among other things, that Johnson’s evidence was not credible.

Id. at 578. When the Supreme Court of Missouri denied Johnson’s petition, fifty-four

days remained before the execution scheduled for August 1, 2023.

3.

After delaying for approximately thirteen days, Johnson filed a motion

to recall the mandate in the Supreme Court of Missouri on Friday, July 21, 2023, at

18

4:04 p.m. The motion requested a stay and the appointment of a special master. On

Saturday, July 22, 2023, the Warden filed suggestions in opposition to the motion to

recall the mandate. On July 25, 2023, Johnson filed a reply in support of his motion

to recall the mandate. On July 29, 2023, and after the Eighth Circuit vacated its stay

of Johnson’s execution, the Missouri Supreme Court denied Johnson’s motion to recall

the mandate.

Reasons for Denying the Writ

II.

This case is a poor vehicle for addressing the questions presented.

Johnson’s petition is a poor vehicle for resolving the questions presented for at

least three reasons. First, Johnson has unreasonably delayed in bringing this petition

for certiorari review. Second, Johnson has raised his Ford and Panetti claims in a

federal habeas petition, which this Court has held is a more appropriate venue for

such claims because it respects our system of dual sovereignty. Third, any relief

would be barred under Edwards v. Vannoy, 141 S. Ct. 1547 (2021). As a result, this

petition presents an exceptionally poor vehicle for the Court to consider the questions

presented.

Johnson has unreasonably delayed in bringing this claim.

Johnson comes to this Court with a history of delay. Missouri pointed out this

history to the Court in Johnson’s 2022 certiorari petition, when Johnson filed that

certiorari petition one day out of time and raised unpreserved claims after delaying

for weeks at the district court and at the court of appeals. Br. in Opp. at 13–16,

Johnson v. Blair, 22-5542. In fact, federal habeas review of Johnson’s case took more

19

than ten years, in large part due to Johnson’s delays and despite never receiving any

relief.

Now, Johnson returns to this Court with hours remaining before his scheduled

execution. But this time, Johnson delayed for approximately 80 of the 104 days

between the issuance of his execution warrant and the date of his execution. Once the

Supreme Court of Missouri set Johnson’s execution date, he was on notice to bring

any claim that he was incompetent to be executed. Instead of bringing his claim in a

timely fashion, Johnson waited nearly a month after the Missouri Supreme Court

issued its execution warrant to file a state-court habeas petition asserting, inter alia,

that he was incompetent to be executed under Ford and Panetti. Tellingly, Johnson

waited nearly a month despite the fact that his expert visited Johnson in February

2023. This delay is particularly troubling here as Missouri moved to set Johnson’s

execution date nearly three months before then on November 14, 2022, which put

Johnson on notice of his potential upcoming execution. After briefing and receiving

documentary evidence, the Missouri Supreme Court denied Johnson’s petition on

June 8, 2023.

Despite his execution being scheduled less than fifty-four days after the

Missouri Supreme Court’s denial, Johnson delayed for fifty-three days before filing

this petition for certiorari hours before his execution. In total, Johnson delayed 80 of

the 104 total days between the issuance of the warrant and the date of his scheduled

execution. While Johnson had a pending federal habeas petition under 28 U.S.C.

§ 2254 alleging the Missouri Supreme Court unreasonably applied clearly established

20

federal law or unreasonably determined the facts in light of the evidence presented

during state proceedings, nothing, except delay for the sake of delay, prevented

Johnson from filing this petition for certiorari directly from the Missouri Supreme

Court’s decision on June 8, 2023.

And, as pointed out supra, Johnson’s recent conduct in filing this petition

without providing notice or service on counsel of record is, itself, evidence of a strategy

of delay. Although Johnson filed his petition sometime on July 31, 2023, counsel for

Respondent only discovered the petition in the late evening hours, and only after

being contacted by a court clerk. The delay of Johnson’s counsel is attributable to

Johnson, and therefore, Johnson has delayed. See, e.g. Shinn, 142 S. Ct. at 1733

(“[T]he attorney is the petitioner's agent when acting, or failing to act, in furtherance

of the litigation, and the petitioner must bear the risk of attorney error.”) (quoting

Coleman, 501 U.S. at 753.

At bottom, Johnson has constructed and executed a strategy of delay.

Missouri—and more importantly the victims of Johnson’s crime—have “an important

interest in the timely enforcement of a sentence.” Bucklew, 139 S. Ct. at 1134 (quoting

Hill, 547 U.S. at 584); 18 U.S.C. § 3771(a)(7). Johnson’s strategy convincingly

illustrates the wisdom of this Court’s concerns about unnecessary delay in capital

cases. And the emotional impact of this case on Casey’s mother amply illustrates this

Court’s prior concerns about the “profound injury” that delay inflicts on the surviving

victims of crime.

21

This Court should decline to issue a writ of certiorari to respect

our system of dual sovereignty.

This Court should not grant certiorari review of state post-conviction claims

because this Court has found federal habeas proceedings (within the confines of

AEDPA) provide a more appropriate avenue to consider federal constitutional claims.

Lawrence v. Florida, 549 U.S. 327, 335 (2007); Kyles v. Whitley, 498 U.S. 931, 932

(1990) (Stevens, J., concurring in the denial of certiorari).

“To respect our system of dual sovereignty,” this Court and Congress have

“narrowly circumscribed” federal habeas review of state convictions. Shinn, 142 S.

Ct. at 1730. The States are primarily responsible for enforcing criminal law and for

“adjudicating constitutional challenges to state convictions[.]” Id. at 1730–31 (citation

and quotations omitted). Federal intervention intrudes on state sovereignty, imposes

significant costs on state criminal justice systems, and “inflict[s] a profound injury to

the powerful and legitimate interest in punishing the guilty, an interest shared by

the State and the victims of crime alike.” Id. at 1731 (citation and quotations omitted).

To avoid the harms of unnecessary federal intrusion, “Congress and federal

habeas courts have set out strict rules” requiring prisoners to present their claims in

state court and requiring deference to state-court decisions on constitutional claims.

Id. at 1731–32; see 28 U.S.C. § 2254(d), (e). A grant of certiorari now would allow

Johnson an end-run around the rules that Congress and federal courts have crafted

to maintain our federalist system of government. Johnson has filed a petition for

certiorari on his Ford and Panetti claims under AEDPA and this petition is therefore

a poor vehicle for this Court’s review. To respect “Our Federalism,” Younger, 401 U.S.

22

at 44, and “finality, comity, and the orderly administration of justice,” this Court

should enforce the limits on federal review of state convictions and deny Johnson’s

petition. Shinn, 142 S. Ct. at 1733 (quoting Dretke v. Haley, 541 U.S. 386, 388 (2004)).

Because this case is on collateral review, Johnson is ineligible to

receive the benefit of any new rule.

Johnson’s complaints about the Missouri Supreme Court’s Panetti procedures

amount to a request that this Court create a new rule that requires an in-person

hearing if the petitioner presents any evidence and requests a hearing. See, e.g., Pet.

29–37. Granting that request would create a new rule of criminal procedure. But, as

this Court recently reaffirmed, new rules of criminal procedure are not retroactive to

cases on collateral review. Edwards, 141 S. Ct. at 1551 (citing Teague v. Lane, 489

U.S. 288, 310 (1989)). As a result, Johnson could not benefit from any new rule that

he has proposed. That, in turn, makes this a poor vehicle for the Court’s consideration

of the questions presented.

III.

Johnson’s request to “clarify” Panetti and Ford is an admission that

this case does not merit the Court’s extraordinary intervention, and

that the Missouri Supreme Court’s decision is not even erroneous.

Johnson’s first argument in favor of certiorari review is a request for this Court

to consider and announce a new definition of “substantial threshold showing of

insanity.” Pet. 29–33. Johnson apparently faults this Court for not articulating a

standard more to his liking, id. at 29–30, before complaining that the Missouri

Supreme Court erred when it adjudicated his case and then arguing that he should

prevail no matter the standard. Id. at 30–33. Johnson’s self-contradictory arguments

show the lack of merit to his claim.

23

What Johnson fails to appreciate is that a “substantial threshold showing of

insanity” is, itself, a complete standard. Competency-to-be-executed claims are

inherently fact-bound questions, and the determination of whether an offender has

made a sufficient showing to receive additional process is left to the state courts in

the first instance. Panetti, 551 U.S. at 949–50.

Johnson’s true aim becomes apparent when he returns to attacking the

Missouri Supreme Court’s decision based on portions of the record that he feels are

more to his benefit. Pet. 30–31. Again, Johnson is merely complaining that the

decision below is wrong; but error correction is not a sufficient reason to grant

certiorari review. See, e.g., 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.”).

As for Johnson’s proposed alternative standards, Pet. 31–32, they are solutions

in search of a problem. This Court has announced a test and properly left it to the

lower courts to apply that test. Panetti, 551 U.S. at 949–50 (holding that a State

“should have substantial leeway to determine what process best balances the various

interests at stake’ once it has met the ‘basic requirements’ required by due process.”)

(quoting Ford, 477 U.S. at 427)). Johnson’s disagreement with that decision is not a

reason to grant certiorari review.

Finally, Johnson’s last-ditch efforts to tie his case to the facts of Panetti is

futile. In Panetti, both the petitioner and the State agreed that Panetti had made a

substantial threshold showing of incompetency. Id. at 950. Not so in this case. Unlike

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Panetti, here the State presented contrary evidence, and the petitioner’s evidence was

a months-old evaluation by a singular, hired expert. Contrary to Johnson’s

suggestions, the result in Johnson’s case differed from the result in Panetti because

the decision in both cases turn on the facts presented in those cases. Johnson, as the

Missouri Supreme Court found, ultimately failed to make the substantial threshold

showing.

IV.

Johnson’s implication that the Missouri Supreme Court might have

violated the Due Process Clause is meritless.

For his second reason for certiorari review, Johnson contends that the Supreme

Court of Missouri’s process for adjudicating competency-to-be-executed claims might

be in violation of the Due Process Clause. Pet. 33–37. Johnson’s own framing of the

question concedes that the claim is meritless.

First, Johnson complains that, in his view, the Supreme Court of Missouri’s

decision was wrong. Pet. 33–34. But mere error correction does not justify certiorari

review. See, e.g., Ross, 417 U.S. at 616–17 (“This Court’s review . . . is discretionary

and depends on numerous factors other than the perceived correctness of the

judgment we are asked to review.”). And, of course, the Missouri Supreme Court’s

decision is not even wrong. The Missouri Supreme Court disbelieved Johnson’s

evidence because it found that his evidence was not credible. Johnson, 668 S.W.3d at

579. Under Missouri law, a fact finder is always free to believe all, some, or none of

the evidence. State v. Jackson, 433 S.W.3d 390, 400 (2014). Of course, the same is

true in federal court. See, e.g., Blodgett v. C.I.R., 394 F.3d 1030, 1036 (8th Cir. 2005).

But even more than that, both Johnson’s medical records and the affidavit of one of

25

his medical providers demonstrated that Johnson was competent to be executed.

Ashley Skaggs, the institutional chief of mental health at prison, executed an

affidavit explaining:

During my visits with Mr. Johnson, he has never expressed these kinds

of hallucinations or delusional beliefs. On the contrary, in recent months

Mr. Johnson has reported that his auditory hallucinations are well

managed by medication and has denied more severe symptoms or side

effects. ... During my visits with Mr. Johnson, he has made statements

about his upcoming execution, his communications with his attorneys,

and the status of his legal appeals. ... From my observations, Mr.

Johnson appears to understand the nature of his upcoming execution.

Johnson, 668 S.W.3d at 579. And Johnson’s medical records indicated that “his

current medications are controlling his mental health symptoms—including reports

from April and May of 2023 that he has been free of auditory hallucinations since

taking medication.” Id.

Events that have occurred after the Supreme Court of Missouri’s opinion

bolster confidence in the correctness of that opinion. As the most recent medical

records show, Johnson understands the nature of the proceedings against him and

the rationale for the State’s punishment. After the stay was entered, Johnson told the

mental health provider that he “feels ‘alright.’” Resp. App. A33. Johnson reported that

the “brain zaps” have stopped and that his sleep has improved. Id. Johnson also

reported that “the [auditory and visual hallucinations] and sense of demons or others

messing with him stopped in the same tiem [sic] frame.” Resp. App. A33. Johnson

further reported that he refuses his medicine when he feels “lazy.” Id. Johnson is, in

other words, competent to be executed.

26

Second, Johnson attempts to compare Missouri’s procedures to the rejected

procedures in Panetti. Pet. 34–35. In Panetti, the Court identified several

shortcomings in the state court that deprived the petitioner of “a ‘fair hearing’ in

accord with fundamental fairness.” 551 U.S. at 950–52. First, “[t]he state court

refused to transcribe its proceedings, notwithstanding the multiple motions

petitioner filed requesting this process.” Id. at 950. And, based on the available

materials (incomplete as they were without a transcript), it appeared that “the state

court on repeated occasions conveyed information to petitioner’s counsel that turned

out not to be true; provided at least one significant update to the State without

providing the same notice to petitioner; and failed in general to keep petitioner

informed as to the opportunity, if any, he would have to present his case.” Id. Second,

it appeared that the state court may have “violated state law by failing to provide a

competency hearing.” Id. That possibility undermined any reliance on the

“substantial leeway” that the States would ordinarily be afforded in determining

“what process best balances the various interests at stake.” Id. at 950–51. Third, “the

order issued by the state court implied that its determination of petitioner’s

competency was made solely on the basis of the examinations performed by the

psychiatrists it had appointed—precisely the sort of adjudication Justice Powell

warned [in Ford] would ‘invit[e] arbitrariness and error[.]’ ” Id. at 951 (citing Ford,

477 U.S. at 424). Fourth, the state court “failed to provide petitioner with an adequate

opportunity to submit expert evidence in response to the report filed by the courtappointed experts.” Id. Instead, after mailing the court-appointed experts’ report to

27

the parties, the state court “told petitioner's counsel, by letter, to file ‘any other

matters you wish to have considered’ within a week.” Id. In response, petitioner

“renewed his motions for an evidentiary hearing, funds to hire a mental health

expert, and other relief.” Id. The state court had previously “said it would rule on

[petitioner’s] outstanding motions,” which explained—and justified—why counsel

“did not submit at that time expert psychiatric evidence to challenge the courtappointed experts' report . . . .” Id. Ultimately, the state court never ruled on the

petitioner’s pending motions, and it ended the matter without holding a competency

hearing. Id.

But in Johnson’s case, Johnson was given the opportunity to present evidence

and make argument, and he was permitted the opportunity to provide additional

evidence and argument in reply to the Warden’s response. See Cole v. Roper, 783 F.3d

707, 713 (8th Cir. 2015) (Gruender, J., concurring). That is all that due process

requires: notice and opportunity to be heard. See, e.g., Fuentes v. Shevin, 407 U.S. 67,

80 (1972). Indeed, in Panetti, this Court instructed that the “basic requirements” of

due process demand nothing more than “an opportunity to submit ‘evidence and

argument from prisoner’s counsel, including expert psychiatric evidence that may

differ from the State’s own psychiatric examination.’ ” Panetti, 551 U.S. at 950

(quoting Ford, 477 U.S. at 427). The Supreme Court of Missouri provided all that and

more. And once Missouri satisfied due process, the federal question was resolved

because, as this Court has held, “a State ‘should have substantial leeway to determine

what process best balances the various interests at stake’ once it has met the ‘basic

28

requirements’ required by due process.” Panetti, 551 U.S. at 949–50 (quoting Ford,

477 U.S. at 427 (Powell, J. concurring in part and concurring in the judgment)). As

a result, Johnson’s efforts to create a legal error worthy of this Court’s review fail.

And third, Johnson raises complaints about the fact determinations the

Supreme Court of Missouri made. Pet. 34–36. But that is not a reason to grant

certiorari review. The Supreme Court of Missouri weighed all the evidence and

determined that “Johnson’s evidence lacks credibility, particularly when viewed in

light of the State’s evidence, to demonstrate a substantial threshold showing of

insanity.” Johnson, 668 S.W.3d at 579. The Missouri Supreme Court’s credibility

determinations cannot be easily disturbed by a federal court. See Marshall v.

Longberger, 459 U.S. 422, 434 (1983) (“We greatly doubt that Congress . . . intended

to authorize broader federal review of state court credibility determinations than are

authorized in appeals within the federal system itself.”). While Marshall was

discussing federal habeas review, AEDPA informs this Court’s determination here,

and it stands to reason that Johnson should not receive a better standard of review

by making an end-run around AEDPA.

It is not surprising that the Missouri Supreme Court did not find Dr. Agharkar

to be credible. This Court and other courts have, like the Missouri Supreme Court did

here, rejected Dr. Agharkar’s opinions. See, e.g., Pet. for Cert., Tracy Beatty v. Bobby

Lumpkin, 22-6004 (Nov. 9, 2022) (denying writ of certiorari and application for stay

after Dr. Agharkar issued report contending that offender was “clearly psychotic . . .

.”) (offender executed Nov. 9, 2022); App. for Stay or Vacatur of Injunction, William

29

Barr v. Wesley Purkey, 20A9 (July 16, 2020) (granting vacatur of preliminary

injunction based, in part, on argument that Dr. Agharkar’s report was fundamentally

flawed on its face) (offender executed July 16, 2020); Conner v. GDCP Warden, 784

F.3d 752, 761–66 (11th Cir. 2015) (affirming district court’s decision to deny

petitioner’s claim he was intellectually disabled despite petitioner’s use of Dr.

Agharkar’s testimony to the contrary); Green v. Davis, 414 F.Supp.3d 892, 913 (N.D.

Tx. Sept. 27, 2019) (holding that the court’s “independent review of the record belies”

the petitioner’s argument, based in part on Dr. Agharkar’s testimony, that “he

suffered from deficits in social and interpersonal skills.”). When this Court rejected

Dr. Agharkar’s opinions in Beatty v. Lumpkin and Barr v. Purkey, it did so on the

basis of a cold record. Now Johnson seeks a writ of certiorari to prevent the Missouri

Supreme Court from doing exactly what this Court has done.

At bottom, Johnson’s arguments in his second point amount to little more than

complaints that he did not prevail below. But that does not entitle him to a writ of

certiorari. The Missouri Supreme Court faithfully applied this Court’s precedent in

Ford and Panetti; this Court’s certiorari review is unwarranted.

V.

Johnson’s complaint about the Supreme Court of Missouri’s

adjudication of his claim is nothing more than a complaint about the

Missouri Supreme Court’s application of Missouri law.

Johnson’s final argument for certiorari review is a complaint that, in other

cases, the Missouri Supreme Court exercises its discretion under state law to appoint

a special master, but in Johnson’s case, the Missouri Supreme Court did not. Pet. 37–

38.

30

If Johnson is raising a claim challenging the Missouri Supreme Court’s habeas

denial and not the judgment of conviction and sentence, then his claim fails because

federal review only extends to claims that the State court’s decision is in violation of

the constitution. 28 U.S.C. § 1257(a). This Court cannot review a claim challenging

the Missouri Supreme Court’s state habeas procedures because state court

procedures are an independent and adequate state law question that is immune from

federal review. See, e.g., Coleman, 501 U.S. at 729. In Coleman, this Court explained

that federal courts have no jurisdiction to review a state court decision that rests on

a state law ground, regardless of whether that state law is procedural or substantive.

Id. To hold otherwise would be to issue an advisory opinion. Id.

Put simply, Johnson’s final complaints are that the Missouri Supreme Court

should have, but did not, appoint a special master under state law. Pet. 37–38. That

is a pure state-law question, and is, therefore, immune from review. Coleman, 501

U.S. at 729. In an effort to avoid this conclusion, Johnson invokes Hicks v. Oklahoma,

447 U.S. 343 (1980), and the Equal Protection Clause. Pet. 38. Neither applies.

A Hicks claim requires a showing that state law vests a “substantial and

legitimate expectation that [the petitioner] will be deprived of his liberty only to the

extent determined by the jury in the exercise of its statutory discretion . . . .” Hicks,

447 U.S. at 346. Johnson’s claim does not relate to a jury sentencing claim, but

instead to the discretionary appointment of a special master. Pet. 37–38. The

Missouri Supreme Court is the finder of fact and concluder of law in capital state

habeas petitions. Cole v. Roper, 783 F.3d at 711. There is, therefore, no “substantial

31

and legitimate expectation” that the Missouri Supreme Court will appoint a special

master in any particular case.

Johnson’s Equal Protection Clause argument fairs even worse. An equal

protection claim requires Johnson to identify a suspect class, such as race. See, e.g.,

Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 143

S. Ct. 2141, 2160 (2023). Johnson, who is white, makes no effort to identify a suspect

class. Johnson abducted, attempted to rape, and forcibly murdered six-year-old Casey

Williamson. As a result of his horrific crimes, he was sentenced to death. Murderers

and attempted child rapists are not members of a suspect class, and Johnson’s failure

to meaningfully engage with this Court’s precedents dooms his argument.

Conclusion

The Court should deny the petition for writ of certiorari and deny the

application for a stay of execution.

32