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Johnson v. Russo

United States District Court, D. Massachusetts

November 8, 2017

LEE JOHNSON, Petitioner,
LOIS RUSSO, Respondent.


          Leo T. Sorokin United States District Judge.

         Lee 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.

         I. BACKGROUND

         On May 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.[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.[2] 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.

         At 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.

         Although 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. at 2-3.

         Without 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).

         Johnson's 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).

         The 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 disposition.[3]


         A. General Habeas Review

         Federal 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).

         If a 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 findings”).

         A state 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).

         For a 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 announced”).

         A state 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 squarely ...

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