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Johnson v. Carpenter

United States Court of Appeals, Tenth Circuit

March 19, 2019

RAYMOND EUGENE JOHNSON, Petitioner - Appellant,
v.
MIKE CARPENTER, Warden, Oklahoma State Penitentiary, [*] Respondent - Appellee.

          APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA (D.C. NO. 4:13-CV-00016-CVE-FHM)

          Thomas D. Hird, Assistant Federal Public Defender (Sarah M. Jernigan, Assistant Federal Public Defender, with him on the briefs), Office of the Federal Public Defender, Oklahoma City, Oklahoma, for Petitioner-Appellant.

          Jennifer L. Crabb, Assistant Attorney General (Mike Hunter, Attorney General of Oklahoma, with her on the brief), Office of the Attorney General, Oklahoma City, Oklahoma, for Respondent-Appellee.

          Before TYMKOVICH, Chief Judge, LUCERO, and MATHESON, Circuit Judges.

          TYMKOVICH, CHIEF JUDGE.

         Oklahoma charged Raymond Johnson with one count of first-degree arson and two counts of first-degree murder for the deaths of his former girlfriend, Brooke Whitaker, and the couple's seven-month-old daughter. The charges stemmed from Johnson's brutal attack on Whitaker with a hammer, after which he doused her with gasoline and set her house on fire, killing both victims. The jury convicted Johnson on all three counts. The Oklahoma jury subsequently concluded that the mitigating evidence did not outweigh four aggravating circumstances surrounding the murders. The jury sentenced Johnson to death.

         Johnson has since sought to overturn his sentence first in Oklahoma state court and now in federal court. In this habeas petition filed under 28 U.S.C. § 2254, Johnson alleges ineffective assistance of trial and appellate counsel. The district court denied relief, and we granted a certificate of appealability on four issues: (1) whether Johnson's appellate counsel was ineffective for failing to challenge the exclusion of certain mitigating evidence; (2) whether his trial counsel was ineffective for failing to investigate and develop certain mitigating evidence and present additional witnesses, and whether his appellate counsel was ineffective for failing to raise the issues on direct appeal; (3) whether Johnson's appellate counsel was ineffective for failing to raise claims of prosecutorial misconduct; and (4) cumulative error.[**]

         Under the Antiterrorism and Effective Death-Penalty Act, we may grant Johnson habeas relief only if the Oklahoma Court of Criminal Appeals unreasonably applied federal law in denying his claims. 28 U.S.C. § 2254(d)(1). This is not a burden Johnson can satisfy here.

         We therefore AFFIRM the district court's denial of Johnson's petition for a writ of habeas corpus.

         I. Background

         Raymond Johnson lived with his girlfriend Brooke Whitaker and their infant daughter for several months in 2007. During that time Johnson also became involved with another woman, Jennifer Walton, and he decided to move out of Whitaker's house in June 2007, staying for a time in a homeless shelter. By the time Johnson and Whitaker broke off their relationship, Walton was already pregnant with Johnson's child.

         On June 22, 2007, Walton dropped Johnson off at Whitaker's home so he could retrieve some clothing. Instead of picking up his clothes and leaving, Johnson waited at the house until the early morning hours when Whitaker returned from work. The two got into an argument, and according to the information Johnson later gave police, Whitaker got a knife and threatened to stab him. Johnson responded by striking her on the head with a hammer. Whitaker fell to the floor and begged Johnson to call 911. He refused because he did not want to return to prison. He instead delivered at least five more blows to the head with the hammer, went to the outside shed to retrieve a gasoline can, and doused Whitaker and the house in gas-including the room where the baby slept. Johnson then lit Whitaker on fire and fled.

         Johnson called Walton and asked her to pick him up behind Whitaker's house. He told Walton when she arrived that a friend had killed Whitaker with a hammer. Walton later recalled that Johnson had blood on his clothes and he smelled like gasoline. She also recalled noticing smoke pour out of Whitaker's front window. Johnson afterward asked Walton to drive him back to Whitaker's still-burning house so he could search for Whitaker's cell phone, which he had used to call Walton, because he was afraid he had left fingerprints on it. Johnson searched outside the house for the phone when they returned, but he could not find it.

         Firefighters arrived at Whitaker's house shortly after 11:00 a.m. on June 23, 2007. The house was completely filled with smoke, and when they ventilated the house they found Whitaker's seven-month-old daughter behind a couch. The infant was dead. Firefighters also found Whitaker unconscious with extensive burns on her body. Paramedics reestablished a pulse, and she was rushed to the hospital. Shortly after arriving, Whitaker died. The medical examiner later determined that she died of blunt force trauma to the head and smoke inhalation.

         Investigators found Whitaker's cell phone in the living room and discovered that two calls had been placed to Jennifer Walton. Police interviewed Walton the same day, and she acknowledged what she knew. Police then set up surveillance around the house where Johnson was staying and arrested him as he left the house that same evening. He waived his Miranda rights and confessed to killing Whitaker and attempting to burn down the house.

         The evidence that Johnson committed the murders was significant, so his trial essentially proceeded as a second-stage sentencing case. The government argued Johnson deserved the death penalty based on four aggravating circumstances: (1) Johnson knowingly presented a great risk of death to more than one person; (2) the murders were especially heinous, atrocious, or cruel; (3) Johnson was previously convicted of a violent felony; and (4) he posed a continuing threat to society. See 21 Okla. Stat. § 701.12; Johnson stipulated to the third factor since he had previously served ten years in prison for first-degree manslaughter. The government supported the other three factors by presenting evidence that investigators found gasoline on the infant's diaper, inferring that Johnson intended to kill both victims. The government also argued Whitaker had suffered significantly; she cried out in horrible pain after Johnson repeatedly struck her, and blood evidence from the scene confirmed that Whitaker retained consciousness and moved even after Johnson lit her on fire.

         Attempting to avoid the death penalty, Johnson's trial counsel presented nine witnesses, most of whom testified that during his previous stint in prison Johnson was an effective Christian preacher and had organized church events and choirs. Trial counsel sought to demonstrate with this evidence that within the structured environment of prison, Johnson could help other prisoners develop and progress through religious activity. Jurors should spare Johnson's life, counsel argued, so he could accomplish this mission.

         In the end, the jury found in favor of all four aggravating factors, found that the mitigating circumstances did not outweigh the aggravating factors, and voted to impose the death penalty. The Oklahoma Court of Criminal Appeals (OCCA) affirmed Johnson's conviction and sentence on direct appeal. See Johnson v. State, 272 P.3d 720 (Okla. Crim. App. 2012).

         Johnson later filed a petition for post-conviction relief with the OCCA alleging the same claims of ineffective assistance of trial and appellate counsel he asserts here. The OCCA denied his petition in an unpublished opinion. See Johnson v. State, No. PCD-2009-1025, slip op. (Okla. Crim. App. Dec. 14, 2012). Johnson filed a second post-conviction petition, which the OCCA denied on procedural grounds. See Johnson v. State, No. PCD-2014-123, slip op. (Okla. Crim. App. May 21, 2014). The court stated that Oklahoma law requires a petitioner to file a second post-conviction petition within sixty days of when a claim against post-conviction counsel could have been discovered with the exercise of reasonable diligence. Id.

         Seeking federal relief, Johnson filed a 28 U.S.C. § 2254 habeas petition in the Northern District of Oklahoma, setting out the six claims originally presented to the OCCA in his first post-conviction petition. The district court denied relief. The district court did, however, issue a certificate of appealability on three grounds dealing with ineffective assistance of trial and appellate counsel. We agreed to hear those claims and granted a certificate on one additional issue, cumulative error.

         We ultimately agree with the district court that no relief is warranted. The OCCA reasonably applied federal law in denying Johnson's post-conviction petition, so we affirm the district court's dismissal of his § 2254 petition.

         II. Analysis

         Johnson alleges three errors at trial and on direct appeal: (1) that the jury should have seen and heard certain additional evidence the court excluded, including photographs, an audio recording, and a video; (2) that trial counsel should have investigated and developed certain mitigating evidence and presented additional witnesses, and that appellate counsel should have raised these failings on direct appeal; and (3) that the prosecutor misstated the law surrounding mitigating evidence. He brings all these claims (as he must, given the posture of the case), through the lens of ineffective assistance of counsel. He also brings a cumulative error claim, contending that even if individually the failings of trial and appellate counsel did not render his trial unfair, the cumulative effect of the errors did.

         The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) governs this case. AEDPA "circumscribes our review of federal habeas claims that were adjudicated on the merits in state-court proceedings." Hooks v. Workman, 689 F.3d 1148, 1163 (10th Cir. 2012). Under AEDPA, a federal court may grant relief to a state prisoner only if he has established

that the state court's adjudication of the claim on the merits (1) "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law"; 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."

Littlejohn v. Trammell, 704 F.3d 817, 824 (10th Cir. 2013) (quoting 28 U.S.C. § 2254(d)).

         This standard is "highly deferential [to] state-court rulings" and demands that those rulings "be given the benefit of the doubt." Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam). "If this standard is difficult to meet, that is because it was meant to be. . . . It preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [Supreme Court] ...


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