Johnson v. Sevier

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

JAMES R. SWEENEY II, JUDGE United States District Court Southern District of Indiana.

Mark Johnson is an Indiana prisoner. His habeas petition challenges his rape conviction and habitual offender enhancement under Indiana No. 49G01-1106-FB-41966. Mr. Johnson raises several claims in his petition. All but one are procedurally defaulted, and the remaining claim is denied on the merits. Accordingly, the petition for a writ of habeas corpus is DENIED.

I. BACKGROUND

A. Underlying Criminal Conduct and Trial

The Indiana Court of Appeals provided the following description of Mr. Johnson's underlying criminal conduct and trial:

The evidence most favorable to the convictions is that at around noon on June 12, 2011, A.T. agreed over the phone to go to Johnson's home in Indianapolis. A.T. went to Johnson's home hoping to smoke marijuana with him Johnson told A.T. after she arrived that he did not have any marijuana but that someone else would bring some to the home at a later time. Meanwhile, the two sat on a couch and discussed each other's children. Johnson smoked crack cocaine and drank beer, while A.T. smoked only cigarettes and did not smoke any crack or drink any alcohol

At some point, Johnson began taking off his clothes. A.T then stood up, intending to leave, but Johnson grabbed her arm and threw her back on the couch. A.T. began yelling and telling Johnson to stop. Instead, Johnson pulled down A.T.'s pants, held her arms over her head, and had vaginal intercourse with her while she continued begging him to stop. After a period of time, Johnson stopped having intercourse, and A.T. pulled up her pants and ran out of the house. While driving away, planning

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on going to a hospital, A.T. saw a parked police car and reported what had happened to the officer

DNA testing revealed the presence of biological material from A.T. on Johnson's penis and fingers and biological material from Johnson on A.T.'s neck. However, there was no biological material from Johnson recovered from A.T.'s genital area or clothing. Additionally, there was DNA from three unidentified males recovered from the panties A.T. was wearing when she went to the hospital after the rape.

When police questioned Johnson about A.T.'s rape allegation and told him that A.T. had denied smoking crack, Johnson accused her of lying and asked whether A.T. would be tested for drugs. The interviewing officer, Detective Laura Smith, said that A.T.'s blood would be so tested at the hospital. However, this statement was based on Detective Smith's outdated belief that toxicology testing of the victim was standard rape examination protocol when in fact that protocol had been changed and toxicology was no longer performed. Instead, a liquid sample of A.T.'s blood was disposed of, without first being tested for the presence of drugs, after a lab technician placed a sample of the blood on a dry card for DNA testing purposes.

On June 15, 2011, the State charged Johnson with Class B felony rape, Class D felony criminal confinement, and Class A misdemeanor battery. The State later filed an allegation that Johnson was an habitual offender. Before trial, Johnson filed a motion to introduce evidence of the unidentified DNA found in A.T.'s underwear, which the trial court denied. Also before trial, Johnson sought dismissal of the prosecution on the basis that the State had destroyed material evidence, i.e. A.T.'s liquid blood, which Johnson claimed could have proven through toxicology testing that A.T. was under the influence of drugs and/or alcohol at the time of the incident, rendering her less credible. The trial court also denied this motion. On November 3, 2011, after a jury trial, Johnson was found guilty as charged, and he admitted to being an habitual offender. The trial court entered judgments of conviction on all three guilty findings and sentenced Johnson accordingly.

Johnson v. State, 974 N.E.2d 604, *1-2 (Ind.Ct.App. 2012) ("Johnson I").

B. Direct Appeal

Mr. Johnson raised three issues before the Indiana Court of Appeals: (1) his convictions for rape, criminal confinement, and battery violated Indiana's rules prohibiting double jeopardy; (2) the trial court erred by denying his motion to dismiss for failure to preserve potentially exculpatory evidence, i.e. A.T.'s liquid blood, which may have shown evidence of intoxication; and (3) the trial court erred by denying his request to present evidence that A.T.'s injuries (which

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included scratches to her skin but no injuries to her genital area) may have resulted from previous sexual activity, which was potentially evidenced by the presence of male DNA in her underwear. Dkt. 8-4, p. 6 (Brief of Appellant).

Mr. Johnson's appeal was granted as to the Indiana double jeopardy claim, and his convictions for criminal confinement and battery were vacated. Johnson I, at *3. His appeal was denied as to his failure to preserve evidence claim and his evidence of prior sexual activity claim, and his conviction for rape was affirmed. Id. at *4.

Mr. Johnson raised one issue in his petition to transfer to the Indiana Supreme Court: that the trial court erred by denying his motion to dismiss for failure to preserve evidence. Dkt. 8-9, p. 2. His petition to transfer was denied. Dkt. 8-2, p. 5.

C. Post-Conviction Relief

Mr. Johnson raised five issues in his petition for post-conviction relief: (1) he received ineffective assistance of trial counsel; (2) he received ineffective assistance of appellate counsel; (3) his habitual offender enhancement was erroneous; (4) the introduction of certain evidence was improper; and (5) the probable cause affidavit did not support the rape conviction. Dkt. 8-10, p. 3 (order on post-conviction relief petition). His petition was denied by the Marion County Superior Court. Id. at 17.

Mr. Johnson raised one issue before the Indiana Court of Appeals: that he received ineffective assistance of appellate counsel. Dkt. 8-11, pp. 4-5. In support of this issue, he argued that his appellate counsel failed to raise ineffective assistance of trial counsel on direct appeal. Id. His appeal was denied. Johnson v. State, 138 N.E.3d 972 (Ind.Ct.App. 2019) ("Johnson II").

Mr. Johnson raised two issues in his petition to transfer to the Indiana Supreme Court: (1) there was insufficient evidence to support his rape conviction; and (2) there was insufficient

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evidence to support his habitual offender enhancement. See generally dkt. 8-17. Mr. Johnson did not argue that he received ineffective assistance of appellate counsel in his petition to transfer. Id. His petition to transfer was denied. Dkt. 8-18.

D. Habeas Petition

Liberally construed, Mr. Johnson's habeas petition raises six issues: (1) the trial court erred by denying his motion to dismiss for failure to preserve exculpatory evidence; (2) the trial court erred by denying his request to present evidence of A.T.'s prior sexual activity; (3) he received ineffective assistance of appellate counsel; (4) he received ineffective assistance of trial counsel; (5) there is insufficient evidence of his rape conviction; and (6) his habitual offender enhancement is erroneous. Dkt. 5, pp. 1-3.^[1]

II. LEGAL STANDARD

A federal court may grant habeas relief only if the petitioner demonstrates that he is in custody "in violation of the Constitution or laws . . . of the United States." 28 U.S.C. § 2254(a). The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") directs how the Court must consider petitions for habeas relief under § 2254. "In considering habeas corpus petitions challenging state court convictions, [the Court's] review is governed (and greatly limited) by AEDPA." Dassey v. Dittmann, 877 F.3d 297, 301 (7th Cir. 2017) (en banc) (citation and quotation marks omitted). "The standards in 28 U.S.C. § 2254(d) were designed to prevent federal habeas retrials and to ensure that state-court convictions are given effect to the extent possible under law." Id. (citation and quotation marks omitted).

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A federal habeas court cannot grant relief unless the state court's adjudication of a federal claim on the merits:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d).

"The decision federal courts look to is the last reasoned state-court decision to decide the merits of the case, even if the state's supreme court then denied discretionary review." Dassey, 877 F.3d at 302. "Deciding whether a state court's decision 'involved' an unreasonable application of federal law or 'was based on' an unreasonable determination of fact requires the federal habeas court to train its attention on the particular reasons-both legal and factual-why state courts rejected a state prisoner's federal claims, and to give appropriate deference to that decision[.]" Wilson v. Sellers, 138 S.Ct. 1188, 1191-92 (2018) (citation and quotation marks omitted). "This is a straightforward inquiry when the last state court to decide a prisoner's federal claim explains its decision on the merits in a reasoned opinion." Id. "In that case, a federal habeas court simply reviews the specific reasons given by the state court and defers to those reasons if they are reasonable." Id.

"For purposes of § 2254(d)(1), an unreasonable application of federal law is different from an incorrect application of...