Johnson v. Sherman

1

BILLY RAY JOHNSON, Petitioner, v. STUART SHERMAN, Respondent.

No. 1:21-cv-01313-DAD-EPG-HC

United States District Court, E.D. California

August 17, 2022

FINDINGS AND RECOMMENDATION RECOMMENDING DENIAL OF FIRST AMENDED PETITION FOR WRIT OF HABEAS CORPUS (ECF No 8)

Petitioner Billy Ray Johnson is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons discussed herein, the undersigned recommends denial of the first amended petition for writ of habeas corpus.

I. BACKGROUND

On April 21, 2015, Petitioner was convicted by a jury in the Kern County Superior Court of twenty-four counts, including inter alia, multiple counts of forcible rape, robbery, and burglary. The jury found true various special allegations regarding firearms. (8 CT^[1] 1868-1944.) Petitioner was sentenced to multiple life, or life-equivalent, terms. (8 CT 2055.) On July 11, 2019, the California Court of Appeal, Fifth Appellate District “remand[ed] for the trial court to exercise its discretion to consider striking any firearm enhancements imposed pursuant to Penal Code sections 12022.5, subdivision (c) or 12022.53, subdivision (h), as amended by Senate Bill No. 620 (Stats. 2017, ch. 682, §§ 1, 2, eff Jan. 1, 2018),” but affirmed the judgment “[i]n all other respects.” People v. Johnson, No. F071640, 2019 WL 3025299, at *16 (Cal.Ct.App. July 11, 2019). On August 6, 2019, the Fifth Appellate District denied the petition for rehearing. (LD^[2]81.) On October 23, 2019, the California Supreme Court denied Petitioner's petition for review. (LD 82.)

Upon remand, the trial court held a hearing, exercised its discretion to not strike the firearm enhancements, and affirmed Petitioner's prior sentence. On May 21, 2021, the California Court of Appeal, Fifth Appellate District affirmed. People v. Johnson, No. F080848, 2021 WL 2023582 (Cal.Ct.App. May 21, 2021).

Petitioner then filed a federal habeas petition. (ECF No. 1.) As the petition was not signed under penalty of perjury, the Court granted Petitioner leave to file an amended petition. (ECF No. 4.) Petitioner filed a first amended petition (“FAP”) raising the following claims for relief: (1) the trial court's denial of Petitioner's request to access the source code utilized to run the software that analyzed the DNA evidence violated his rights to confrontation, compulsory process, and due process; (2) the trial court's exclusion of Petitioner's proffered expert testimony violated his rights to confrontation, compulsory process, and due process; (3) the trial court's failure to grant a mistrial after discharge of a juror violated Petitioner's statutory and Fifth and Sixth Amendment rights; and (4) the trial court erroneously denied Petitioner's Batson/Wheeler motion. (ECF No. 8.) Respondent filed an answer, and Petitioner filed a traverse. (ECF Nos. 16, 23.)

II. STATEMENT OF FACTS^[3]

This case revolves around four burglaries and sexual assaults that occurred between late June and late August 2013.^[4] Appellant was ultimately charged and convicted with perpetrating all four attacks and appeals from those convictions. Given the variety of issues raised by appellant, we will first generally recount the events, including relevant evidence from the trial, before generally recounting relevant aspects of how the trial unfolded. Additional factual detail will be provided as each relevant legal issue is discussed.

The Assaults

The first incident occurred in the early morning on July 1, and involved two young women. According to one of the women, she went to bed around 2:00 a.m. and woke up to find a man standing near a window in her room. She described the man as around six feet tall, and black with hazel brown eyes. He was wearing a ski mask, a dark sweatshirt, and gloves with the fingers cut off. He possessed a black gun.

The man told the woman to look away and cover her eyes; he placed a pillow case over her head and told her he would kill the girl in the other room if she was not quiet. The man removed the woman's bra and told her he was going to rape her. He then put the gun to the woman's head and cocked it.

At this point the woman grabbed for the gun and yelled out. The man responded by hitting the woman in the head several times. The second woman heard the yelling and came toward the room from where she had been sleeping. The man struck her with the gun and slammed her against the wall, telling her to shut up or he would kill her. During this time, the first woman ran from the apartment. The man gave chase. The second woman locked the door and tried to call 911. The first woman ultimately reached her cousin's apartment, where the police were called. Upon returning to the apartment, the first woman noticed her cell phone was missing.

The police determined the man likely entered the apartment through a bedroom window and found the screen had been removed from a window that was found open. They located a single shoe print at the scene. A black and white pair of Nike shoes later recovered from appellant's residence could not be excluded as a match, although there were insufficient distinguishing features to identify them as the shoes that left the print.

The women first called 911 at 3:29 a.m., and the police estimated the crime occurred about 15 minutes before the call. Analysis of appellant's cell phone records showed he was speaking with his girlfriend until 3:00 a.m., stopped using the phone for a while, then resumed texting his girlfriend at 4:00 a.m. His phone was utilizing cell towers that covered both his residence and the scene of the crime. Apparently, no DNA from this crime was obtained and tested.

The second incident occurred on July 18, around 5:00 a.m. The woman attacked in this incident said her husband left for work around 4:45 a.m. She fell back asleep after he left, only to wake up with a gloved hand over her mouth. Her attacker was a black male slightly taller than 5 feet 11 inches with a deep voice who smelled like cigarettes. He wore a black ski mask, black jean shorts, a sweater, black shoes with white markings, and had a black backpack.

The man instructed the woman to go to the living room and get on her knees. He covered her head with a blanket. He told her not to look at him, not to scream, and to think of her daughter. He used a purse strap to tie her hands. The man then asked for money and began searching the apartment. He told the woman he knew her, called her by name, and said he'd been watching her. He removed her clothing and touched her breasts and body. The man then had intercourse with the woman, using a condom. After he finished, he took the woman to the bathroom and washed her.

The man took the woman back to the living room, her face covered with her shirt, and sat down next to her. He asked her about her relationship and whether she would tell her husband what had happened, and told her not to call the police. He stated he would take her cell phone, but told her he would hide it instead when the woman said there were special pictures of her daughter on the phone. Eventually, the man left through the kitchen window, and around 6:00 a.m., the woman called 911.

The police investigation found a window screen on the ground and that the bathroom window could be opened from the outside, even if locked. The rag used to wash the woman could not be found, but an unknown phone cord, the purse strap used to bind the woman, and the woman's cell phone along with other items were all collected and analyzed. The police also found shoe tracks in the dirt behind the woman's apartment. These prints were consistent in tread to a pair of black Reebok shoes found at appellant's residence.

The review of appellant's cell phone usage showed activity up to about 1:15 a.m. the morning of the attack and then a break until 5:57 a.m., when appellant began calling his girlfriend. The activity around 1:00 a.m. occurred near appellant's residence. The call at 5:57 a.m., however, utilized the cell tower covering the victim's apartment. In activity after that time, appellant's cell phone travelled back to the cell tower covering his apartment, arriving there by 6:17 a.m. Police reviewed four months of cell phone records and found this was the only time in that period appellant's cell phone connected with the tower covering the woman's apartment.

The police also attempted to conduct DNA analyses on several samples including the purse strap, telephone cord, and cell phone collected, along with a sample taken from the kitchen window. These samples all had multiple contributors and either could not be manually interpreted or could not be matched to a known potential contributor. The police, therefore, utilized a software program called TrueAllele to obtain what are known as match statistics for each sample. These statistics determine the probability that a known DNA profile is a contributor to the mixture when compared to a random person from various ethnic populations. The software is based on known mathematical models based on an algorithmic concept known as the Markov chain Monte Carlo, but the actual analysis it conducts is not publicly known and its source code is not made available for review. Its results have been subjected to peer review analysis and its program validated in certain controlled studies.

Two experts tested the DNA used in appellant's case. The first was Dr. Mark Perlin, the inventor of TrueAllele and a hired expert in the case. The second was Garett Sugimoto, a criminalist trained to use the TrueAllele software with the Kern Regional Crime Laboratory. Both sets of results were presented at trial.

According to Dr. Perlin, a match between appellant and one of the contributors in the sample was 43 times more probable than

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