United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON PETITION FOR WRIT OF HABEAS
CORPUS (DOC. NO. 1)
Sorokin United States District Judge.
Johnson, a prisoner at the Massachusetts Correctional
Institution in Concord, Massachusetts, has filed a counseled
petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254, in which he raises three challenges to his
conviction and sentence. His claims relate to perceived
deficiencies by the trial court and his attorney during voir
dire of prospective jurors, and to a jury instruction he
argues was erroneous. The respondent has opposed the
petition, arguing each of Johnson's claims fails either
procedurally or substantively. For the reasons that follow,
the petition is DENIED.
13, 2010, following a jury trial in Middlesex County Superior
Court, Johnson was convicted of assault and battery resulting
in serious bodily injury (“A&B/SBI”),
indecent assault and battery, and two counts of assault and
battery (“A&B”). Doc. No. 1 at 2-3; Doc. No.
1-3 at 1. He received consecutive sentences of
incarceration on the first two counts, followed by
consecutive terms of probation on the A&B counts. Doc.
No. 1 at 2; S.A. at 6. The charges stemmed from Johnson's
“alleged sexual assault of [a friend of his girlfriend]
at the apartment in which [his girlfriend and their infant
daughter] lived, and a resulting altercation with [his
girlfriend] in which [another of her friends] attempted to
intervene, all on the evening of October 10, 2008.”
Doc. No. 1-3 at 2. Johnson is black; all three complainants
are white. Id.
trial, Johnson was represented by a public defender with at
least four years of experience practicing criminal law,
including representing defendants in five previous jury
trials. Id. at 9. The trial judge described
Johnson's attorney as “prepared, thoughtful,
polished, skillful, and zealous.” Id. The
defense at trial turned on testimony by Johnson and his
girlfriend that: the complainant alleging sexual assault was
lying, motivated by Johnson's rejection of her efforts to
initiate a consensual sexual encounter with him a week after
she, Johnson, and his girlfriend had engaged in a
“threesome”; Johnson's girlfriend had been
the aggressor in the physical altercation; and the friend who
intervened was injured by accident. Id. at 5-10.
generally “aware that people of color may not get a
fair trial from jurors of different backgrounds, ”
Johnson's trial counsel “believes that making race
an issue risks creating the perception, in the minds of
jurors, that the defense attorney is ‘playing the race
card, ' and that this can reflect adversely on the
perceived credibility of the attorney, to the client's
detriment.” Id. at 12. In this case,
“the race issue did not play a role in [the
attorney's] trial strategy.” Id. During
jury selection, Johnson's counsel requested voir dire
questions covering general bias and a variety of other
topics, such as experience with sexual assault and domestic
violence, but did not propose questions exploring racial
bias. Id. at 13. According to Johnson's counsel,
his failure to request such questions was an oversight, not a
matter of strategy. Id. The trial court did not ask
questions about race when examining prospective jurors, but
would have done so had counsel asked for such questions.
Id. The venire from which Johnson's jury was
selected included few, if any, people of color. Id.
objection by defense counsel, the trial court instructed the
jury regarding the mens rea elements of A&B/SBI and
A&B as follows:
[T]he Commonwealth has to prove . . . that [the defendant]
intended to engage in a touching. . . . [T]he Commonwealth
must prove that the defendant intended to make contact with
the complainant's person. In other words that it was not
an accident. An accident, of course, is an unexpected
happening that occurs without intention or design on the
defendant's part. It means a sudden, unexpected event
that takes place without the defendant's intending it.
All that's meant here is that the Commonwealth must prove
that the defendant intended to make the contact, not
necessarily the particular type of contact or all the
consequences, but the touching itself, the contact must have
been intentional on the part of the defendant.
S.A. at 1022-24, 1030; see id. at 1037 (reflecting
the “defense [wa]s content” with the jury
instructions); see also Doc. No. 1-3 at 25-26
(reflecting the “intent” instruction given was an
expanded version of the charge requested by the defense).
timely direct appeal was stayed by the Massachusetts Appeals
Court (“MAC”) at his request, pending his filing
a motion for a new trial. S.A. at 6, 11-12. His February 2012
motion challenged trial counsel's effectiveness,
including with respect to juror voir dire. S.A. at 7; Doc.
No. 1-3 at 1. After an evidentiary hearing featuring
testimony by trial counsel and oral argument on Johnson's
claims, the trial court denied Johnson's motion. See
generally Doc. No. 1-3. The MAC affirmed in an
unpublished April 3, 2014 decision, rejecting challenges to
the denial of Johnson's counsel-ineffectiveness claim and
to the trial court's description of the mens rea required
to sustain a conviction of A&B/SBI. See generally
Commonwealth v. Johnson, 5 N.E.3d 969, 2014 WL 1315007
(Mass. App. Ct. 2014).
Supreme Judicial Court and the Supreme Court of the United
States declined Johnson's applications for further
review. Johnson v. Massachusetts, 135 S.Ct. 1508
(2015); Commonwealth v. Johnson, 20 N.E.3d 611
(2014). Johnson filed a timely federal habeas petition in
this Court on October 20, 2015 raising three claims:
1) Trial counsel was constitutionally ineffective in failing
to ensure an unbiased jury through individual voir dire
related to racial bias;
2) The trial court erroneously omitted the element of malice
from its instruction regarding A&B/SBI, which denied
Johnson due process; and
3) The trial court erred in failing sua sponte to conduct
individual voir dire of prospective jurors regarding racial
bias, which denied Johnson due process.
Doc. No. 1 at 6, 8-9; see also Doc. No. 7 at 8-49.
Johnson's claims have been briefed and are ripe for
General Habeas Review
district courts may not grant a writ of habeas corpus unless
they find that the state court's adjudication of the
petitioner's claims “(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). In other
words, state court decisions merit substantial deference. As
the Supreme Court repeatedly has emphasized, such deference
results in a federal habeas corpus standard that is
“difficult to meet, ” with the petitioner
carrying a heavy burden of proof. Harrington v.
Richter, 562 U.S. 86, 102 (2011); accord Cullen v.
Pinholster, 563 U.S. 170, 181 (2011); see Burt v.
Titlow, 134 S.Ct. 10, 15-16 (2013) (emphasizing the
“formidable barrier” faced by federal habeas
petitioner where claims already were adjudicated in state
court, and limiting relief to cases of “extreme
malfunctions” by state criminal justice systems).
state court's decision “was reasonable, it cannot
be disturbed” on habeas review. Hardy v.
Cross, 565 U.S. 65, 72 (2011) (per curiam); see
Renico v. Lett, 559 U.S. 766, 779 (2010) (admonishing
federal habeas courts not to “second-guess the
reasonable decisions of state courts”). When applying
this strict standard, federal courts must presume that the
state court's factual findings are correct, unless the
petitioner has rebutted that presumption with clear and
convincing evidence. § 2254(e)(1); Miller-El v.
Cockrell, 537 U.S. 322');">537 U.S. 322, 340-41 (2003); accord Teti
v. Bender, 507 F.3d 50, 57 (1st Cir. 2007); see
Woods v. Donald, 135 S.Ct. 1372, 1376 (2015) (per
curiam) (noting “federal judges are required to afford
state courts due respect by overturning their decisions only
when there could be no reasonable dispute that they were
wrong”); Pike v. Guarino, 492 F.3d 61, 68 (1st
Cir. 2007) (discussing the “separate and exacting
standard applicable to review of a state court's factual
court ruling is “contrary to” clearly established
Supreme Court precedent “if the state court applies a
rule that contradicts the governing law set forth in [Supreme
Court] cases, ” or “if the state court confronts
a set of facts that are materially indistinguishable from a
decision of [the Supreme] Court and nevertheless arrives at a
result different from [its] precedent.” Williams v.
Taylor, 529 U.S. 362, 405-06 (2000). The state court is
not required to cite, or even have an awareness of, governing
Supreme Court precedents, “so long as neither the
reasoning nor the result of [its] decision contradicts
them.” Early v. Packer, 537 U.S. 3, 8 (2002);
cf. Richter, 562 U.S. at 100 (stating “§
2254(d) does not require a state court to give reasons before
its decision can be deemed to have been ‘adjudicated on
the merits'” and entitled to deference).
habeas petitioner to prevail under this exacting standard,
the state court judgment must contradict clearly established
holdings of the Supreme Court, not merely law articulated by
a lower federal court, and not dicta of any court.
Williams, 529 U.S. at 404-05; see Donald,
135 S.Ct. at 1376; Knowles v. Mirzayance, 556 U.S.
111, 122 (2009). In a string of recent decisions reversing
grants of habeas relief by lower federal courts, the Supreme
Court has “repeatedly emphasized” that
“circuit precedent does not constitute ‘clearly
established Federal law'” for purposes of §
2254(d)(1). Glebe v. Frost, 135 S.Ct. 429, 431
(2014); see also, e.g., Marshall v.
Rodgers, 569 U.S. 58, 64 (2013) (warning against using
circuit precedent to “refine or sharpen a general
principle of Supreme Court jurisprudence into a specific
legal rule that th[e] [Supreme] Court has not
court decision constitutes an “unreasonable
application” of Supreme Court precedent if it
identifies the correct governing legal rule, but
“unreasonably applies it to the facts of the particular
state prisoner's case.” Williams, 529 U.S.
at 407-08. When making the “unreasonable
application” inquiry, federal habeas courts must
determine “whether the state court's application of
clearly established federal law was objectively
unreasonable.” Id. at 409. An unreasonable
application of the correct rule can include the unreasonable
extension of that rule to a new context where it should not
apply, as well as an unreasonable failure to extend the rule
to a new context where it should apply. Id. at 407.
It cannot, however, include a decision by a state court not
“to apply a specific legal rule that has not been