Johnson v. McGinley

Marilyn J. Horan United States District Judge

REPORT AND RECOMMENDATION

Cynthia Reed Eddy Chief United States Magistrate Judge

I. RECOMMENDATION

Petitioner, Lonnelle M. Johnson, Jr., a state prisoner incarcerated at SCI- Coal Township, has filed a pro se Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (ECF No. 14), challenging the Judgment of Sentence imposed upon him by the Court of Common Pleas of Allegheny County, on October 25, 2010, in his criminal case at CP-02-CR-0011414-2009. The petition is ripe for disposition. For the reasons outlined below, it is recommended that the Petition be denied and a certificate of appealability likewise be denied.

II. REPORT

A. Relevant Procedural and Factual Background

This case arises from the fatal shooting of Hoang Nguyen on June 26, 2009. The Pennsylvania Superior Court, in a Memorandum dated July 1, 2012, affirming Mr. Johnson's conviction and judgment, recounted the facts that led to his arrest and conviction as follows:

Thomas Nguyen testified that he and his brother, Hoang, were in the Hill District of Pittsburgh at approximately noon on June 26, 2009, dropping his

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brother's baby off to the mother. Hoang[ ] was driving and Thomas was in the passenger's seat while the vehicle was stopped on Bedford Avenue. As they were stopped there, a group of people, which included [Appellant], waved toward Hoang. Hoang pulled the vehicle to the side of the road to talk to these individuals. One of the individuals, later identified by [Thomas] as “Woozy, ” was speaking with the brother through the driver's side window. Two other individuals were also present outside the vehicle While his brother was talking with Woozy, another individual later identified as [Appellant] [Lonnelle] Maurice Johnson jumped into the backseat of the car on the driver's side pointed a gun at Hoang and told him “to give it up.” Thomas took that to mean that he wanted them to give him anything of value that he and his brother had.

At this point, however, Hoang put the car into drive and began to drive away. When he did this, [Appellant] said, “Don't try it. I'll shoot you.” Hoang stepped on the gas pedal. As soon as the car started moving, [Appellant] started shooting. Thomas heard at least three gunshots. The vehicle then crashed into a tree. Thomas blacked out for a few seconds. When he awoke, he did not see his brother in the driver's seat any longer. He tried to get out, but his door would not open. He indicated that he noticed that he had been shot in the leg. He still saw the individual identified as Woozy standing near a building but did not see the individual who had shot him.

While he was at the hospital, the police came and showed him photographs. He stated that he was able to speak to the police and was not under the influence of drugs at that point. He recalls the conversation he had with the police. He was shown several sets of photographs. He identified Woozy from one set and [Appellant] from another set of photographs. Thomas identified [Appellant] in the Courtroom and identified him as the individual who jumped into the back seat of the car, pointed the gun at him and his brother and shot them.

...

Daniel Williams (“Woozy”), also testified. He stated that he saw [] Hoang, drive up and wave[] at him to speak with him. [Williams] spoke with [Hoang] through the driver's side door and noticed that [Hoang's] brother was in the passenger seat. [Williams] stated that he talked to [Hoang] for a few minutes. While standing next to the driver's window, [Williams] saw someone holding a gun jump into the back seat of the car and say something to the two victims. [Williams] testified that [Hoang] drove off with the individual still in the backseat. The car travelled a short distance and then struck a tree. He then saw it crash into a tree....[Williams] said that the individual in the car got out and ran. He then saw [Hoang] get out of the car, put his hand to his head and fall to the ground. [] Williams stated that he stayed at the scene and was placed under arrest when the police showed up. He stated that he provided a description of the

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individual he saw but could not provide the name of the person. He admitted that he told them that he was afraid to identify that person.

On cross[-]examination, Williams testified that he knew the [Appellant], Lonnelle [Maurice] Johnson, and had known him for years. He stated that [Appellant] was not the individual who was in the backseat of the vehicle.

Detective Bonzale Boose, with the City of Pittsburgh Homicide Division, testified that he interviewed Williams and that Williams told him that while he was standing at the driver's window talking with [Hoang], and individual walked up to his right side, opened the rear door on the driver's side, and got in with a handgun pointed at the driver. He said the car pulled away and he heard several gunshots. The car then accelerated a few feet, turned and struck the tree, where it came to rest. He said he saw the individual get out of the car and run into the projects. He also said he saw the driver get out of the car and collapse to the ground. When Detective Boose asked him if he could identify the person he saw enter the car[], [Williams], according to Detective Boose, said “He could ID that individual, but he will not ID an individual under any circumstances out of safety for himself and his family.”

The Commonwealth also presented fingerprint evidence. Latent prints were obtained from [the] rear driver's door and door frame, which was where both the surviving victim and Williams said the assailant had entered the vehicle. Of the total of nine latent prints of value obtained from the [] vehicle, three were matched to the [Petitioner]. Two from the rear door matched [Petitioner's] left little finger and one matched his left middle finger.

In addition, the Commonwealth presented testimony from Walter Lorenz, a forensic scientist from the Allegheny County Medical Examiner's Division of Laboratories. Dr. Lorenz testified that DNA samples were obtained from the exterior and interior handles from the rear driver's side door. Samples were also obtained from the [Appellant] and the victim, Hoang Nguyen. The comparison between the sample from the interior door handle and the samples from [Appellant] and the victim resulted in Dr. Lorenz excluding both as significant contributors to the DNA material obtained from the interior door handle. The comparison between the DNA material obtained from the exterior handle and that from the victim and [Petitioner], however, resulted in the exclusion of the victim as being a possible contributor and the determination that the DNA from the door handle and from [Appellant] matched. The possibility of such a match was one in 1.3 billion among African Americans.

Commonwealth v. Johnson, No. 1937 WDA 2010, unpublished mem. (Pa. Super. 2012) (quoting Trial Court Opinion, Nov. 18. 2011, at 4-9) (ECF No. 20-2 at 1-4).

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Mr. Johnson was charged with one count each of first-degree murder, aggravated assault, carrying firearm without a license, and with two counts of robbery. On July 26, 2010, Mr. Johnson appeared with counsel, Christopher Patarini, Esquire, for a jury trial held in the Court of Common Pleas of Allegheny County before The Honorable Jeffrey A. Manning. At the conclusion of the trial on July 29, 2010, the jury found Mr. Johnson guilty on all charges. On October 25, 2010, Mr. Johnson was sentenced to life imprisonment without the possibility of parole on the first-degree murder conviction, and a concurrent aggregate 20 to 60-year sentence on the remaining convictions.

Mr. Johnson, through appellate counsel, Candace Stockey Seymour, Esquire, filed a timely Notice of Appeal to the Superior Court of Pennsylvania raising five claims. See Appellant Br. (ECF No. 20-1 at 40-41). The Superior Court affirmed the convictions, but vacated the judgment of sentence and remanded for the sole purpose of resentencing Mr. Johnson to credit him for his time served while in pre-trial custody. Mr. Johnson filed a Petition for Allowance of Appeal to the Pennsylvania Supreme Court, which was denied. On May 5, 2013, Mr. Johnson was resentenced to receive appropriate time credit.

On August 26, 2013, Mr. Johnson filed a pro se petition under the Pennsylvania PostConviction Relief Act (“PCRA”) in which he raised three claims of ineffective assistance of trial and appellate counsel. On June 2, 2014, court-appointed PCRA counsel, Ryan H. James, Esquire, filed a motion to withdraw and no-merit letter, pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). (ECF No. 20-2 at 39-59). The PCRA court filed a Notice of Intention to Dismiss the PCRA petition and allowed counsel to withdraw. In response, Mr. Johnson filed an amended PCRA petition pro se. On August 11, 2015, after reviewing the amended PCRA petition, the

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PCRA court issued a Memorandum Opinion and Amended Notice of Intention to Dismiss. (ECF No. 20-2 at 61-65).

Mr. Johnson, pro se, filed a timely appeal to the Superior Court of Pennsylvania, in which he raised two distinct issues: (i) ineffective assistance of trial counsel for failing to investigate and present four witnesses at trial; and (2) a challenge to the denial of his PCRA Petition without a hearing. (ECF No. 20-3 at 1-37). The Superior Court affirmed the denial of the dismissal of the PC...