Johnson v. Bell

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206 2 Johnson v. Bell No. 01-5451
ELECTRONIC CITATION: 2003 FED App. 0323P (6th Cir.)File Name: 03a0323p.06 NORRIS, J., delivered the opinion of the court, in which
BOGGS, J., joined. CLAY, J. (pp. 14-20), delivered a
separate dissenting opinion.
UNITED STATES COURT OF APPEALS
_________________
FOR THE SIXTH CIRCUIT
_________________ OPINION
_________________
DONNIE E. JOHNSON, X
ALAN E. NORRIS, Circuit Judge. Donnie E. Johnson, a
Petitioner-Appellant, - prisoner on death row in Tennessee, appeals from the denial
-
- No. 01-5451 of his petition for a writ of habeas corpus. 28 U.S.C. § 2254.
v. - The sole issue on appeal concerns the performance of defense
> counsel during the sentencing phase of the trial, which
, petitioner contends amounted to constitutionally ineffective
RICKY BELL, -
Respondent-Appellee. - assistance. The district court declined to issue the writ on this
ground because it concluded that counsel satisfied the Sixth
N Amendment standards governing the right to effective
Appeal from the United States District Court representation as defined by Strickland v. Washington, 466
for the Western District of Tennessee at Memphis. U.S. 668 (1984). We now affirm that judgment.
No. 97-03052—Bernice B. Donald, District Judge.
I.
Argued: March 25, 2003
Because the scope of this appeal is limited, the underlying
Decided and Filed: September 10, 2003 facts that gave rise to petitioner’s prosecution, while tragic,
are not germane to our discussion. They are set forth at some
Before: BOGGS, NORRIS, and CLAY, Circuit Judges. length in the opinion of the Supreme Court of Tennessee
affirming petitioner’s conviction and sentence on direct
_________________ appeal. State v. Johnson, 743 S.W.2d 154 (Tenn. 1987), cert.
denied, 485 U.S. 994 (1988). Suffice it to say that petitioner
COUNSEL brutally murdered his wife, Connie Johnson, on December 8,
1984, at the camping equipment center where he worked.
ARGUED: C. Mark Pickrell, Nashville, Tennessee, for With the help of a co-worker, he then disposed of her body
Appellant. Alice B. Lustre, OFFICE OF THE ATTORNEY and rather ineffectively set about covering up his crime.
GENERAL, Nashville, Tennessee, for Appellee.
ON BRIEF: C. Mark Pickrell, Nashville, Tennessee, for During his trial, petitioner was represented by retained
Appellant. Alice B. Lustre, Paul G. Summers, Michael E. counsel Jeff Crow and Clark Washington. Washington’s
Moore, OFFICE OF THE ATTORNEY GENERAL, background was primarily in civil practice. Crow testified in
Nashville, Tennessee, for Appellee. state post-conviction proceedings that he had conducted five
1
No. 01-5451 Johnson v. Bell 3 4 Johnson v. Bell No. 01-5451
or six criminal trials before this one but could not remember only on the day of trial. According to Mrs. Johnson, she was
whether the one murder trial he had second-chaired had been not asked about her son’s background or marriage even
a death-penalty case. The sentencing phase of the trial took though he and his wife had lived next door to her since their
place over October 3 and 4, 1985. The jury found both the marriage. She did not know of any problems between her son
aggravating circumstances presented to it: 1) Johnson had and his wife. Rather, she believed him to be a hard worker
previously been convicted of one or more felonies that who cared for his family and raised well-mannered children.
involved the use of threat or violence; 2) the murder was Despite this information, she was not asked to testify.
especially heinous, atrocious, and cruel in that it involved
torture or depravity of the mind. Although he did not testify James Johnson, petitioner’s father, contended that petitioner
during the guilt phase of his trial, petitioner elected to take the “was one of the most devoted person[s] to his family that I
stand during his sentencing hearing. He denied that he killed have ever seen,” and that he was a good son, a hard worker,
his wife and attempted to shift the blame to his co-worker, and a good family man. Mr. Johnson went on to assert that
who was on work release from prison at the time of the trial counsel asked him very little about his son’s boyhood
murder. Johnson, 743 S.W.2d at 156. He conceded, and schooling. Concerning the fact that he did not testify at
however, that he assisted in the disposal of his wife’s corpse. trial, petitioner’s father indicated that he had been willing to
do so but had been advised by counsel that it would be
Defense counsel called only one other witness in unwise. Petitioner’s brother, James C. Johnson, Jr., continued
mitigation, Robert G. Lee, a minister who had counseled with this theme, stating that trial counsel did not ask him
Johnson and his family while he was in jail. The minister about his brother’s background other than an earlier arrest in
testified that Johnson had told him that “his faith in God was Ohio. Had he testified, James Johnson would have asserted
what was sustaining him through this ordeal. He also that he had spent a significant amount of time with petitioner
expressed to me that he knew that ultimately one day he and his family and that “there was never an altercation of any
would have to give an accounting of his life to God.” kind that I remember other than fun and laughter.” Like his
father, James Johnson stated that he was available to testify
As mentioned, the jury returned a sentence of death. After on behalf of his brother, but trial counsel “said it would be
exhausting his direct appeals, petitioner initiated a post- advisable not to.”
conviction action in the Criminal Court of Shelby County,
Tennessee, alleging for the first time that he received Petitioner’s sister, Shirley Ward, testified that trial counsel
ineffective assistance during the sentencing phase of his trial never contacted her. She stated that petitioner was a good
because his attorneys failed adequately to investigate or family man who did not have any problems at home. On
otherwise develop mitigating evidence. The court held an cross examination, she admitted that she knew nothing of
evidentiary hearing, which included the testimony of petitioner’s alleged or admitted extramarital relationships.
petitioner, certain of his family members, trial counsel, and
experts on the topic of proper practices in preparing for Mary Ward, petitioner’s other sister, testified that she told
sentencing proceedings in a capital case. trial counsel that she was available to testify at trial but was
never contacted by counsel. She, too, indicated that she had
Ruby Johnson, petitioner’s mother, testified that she spoke been with the deceased “numerous times and they had a very
with attorney Washington once about her son’s case and that happy marriage.” On cross examination she stated, “All I
“he talked very little about it to me.” She met attorney Crow know is that Donnie loved Connie, and he would not have
No. 01-5451 Johnson v. Bell 5 6 Johnson v. Bell No. 01-5451
killed her. And they had a happy marriage.” She did not sentencing was to review the Tennessee code on
know anything about the alleged problems in petitioner’s death-penalty procedure while the guilt portion of the trial
marriage. was under way.
In addition to these five family members, three other On August 2, 1989, the Tennessee trial court issued an
potential character witnesses testified at the hearing. A order denying post-conviction relief. The court accepted trial
childhood friend, Barry Gray, stated that he had known counsel’s testimony that family members “could not or would
petitioner to be a good friend, hard worker, and a caring not get involved in testifying.” Any testimony from them
family man. James Ingram, petitioner’s jailer pending trial, “that [petitioner] was a good worker and had a good
mentioned that petitioner had caused no trouble while marriage” would have opened the door to rebuttal evidence of
incarcerated and had a clean disciplinary record. And, finally, strains in his marriage, the court concluded. The court
David Force, petitioner’s employer, asserted that petitioner indicated that family members’ testimony would not have
had been a good employee. been enough to overcome the jury’s apparent rejection of
petitioner’s direct testimony and the “devastating” cross
The post-conviction hearing contained contradictory examination that followed. Citing Strickland, supra, the court
testimony concerning the extent to which trial counsel found “nothing in the evidentiary hearing to suggest that there
contacted family members, evaluated their potential was any failure of counsel to meet the standards of
testimony, and considered asking them to testify during the competence required in criminal cases or that any action or
sentencing phase of the proceedings. While the family inaction on their part prejudiced the case of their client.”
members recall some fleeting contact, they uniformly contend
that they were discouraged from testifying. Their position, Petitioner appealed to the Tennessee Court of Criminal
however, is somewhat at odds with the memory of trial Appeals, which affirmed the trial court’s judgment. Johnson
counsel. Jeff Crow, lead trial counsel, testified that family v. State, No. 61, 1991 WL 111130 (Tenn. Crim. App.
members indicated to him that they did not want to take the June 26, 1991) (No. 61). The court reasoned as follows:
stand. According to him, “As I remember, we talked to the
family. We talked to the minister. We talked to Johnson. At the post-conviction hearing, members of the
And we decided after doing all that to handle the sentencing appellant’s family testified they wished to testify at the
hearing in the manner in which it was done.” Petitioner’s convicting trial but were not called to do so.
co-counsel, Clark Washington, corroborated Crow’s
testimony that family members were reluctant to appear at These witnesses testified they would have told the jury
trial. “All of them wanted to help Don Johnson,” Washington the appellant was a hard worker who loved his family.
testified, “but they were concerned or afraid or not wanting to The major flaw in this was the fact the appellant was
really come in under the spotlight in a courtroom and take a convicted of murdering his wife.
witness chair.”
We conclude this evidence would not have benefitted
The record suggests that Crow and Washington were the appellant, and the failure of the trial lawyer to call
diligent in preparing for the guilt phase of the trial but gave these witnesses during the penalty phase of the trial gives
scant attention to the sentencing phase until the verdict was no right to a new trial.
returned. In fact, Crow testified that his main preparation for
No. 01-5451 Johnson v. Bell 7 8 Johnson v. Bell No. 01-5451
1991 WL 111130 at *1-2. (citation omitted). The Supreme 28 U.S.C. § 2254(d). In addition, the findings of fact made
Court of Tennessee declined to review this decision. by a state court are presumed to be correct and can be
Thereafter, petitioner initiated another, ultimately contravened only if the habeas petitioner can show by clear
unsuccessful post-conviction challenge that is not relevant to and convincing evidence that the state court’s factual findings
the sole issue before us. were erroneous. 28 U.S.C. § 2254(e)(1).
After exhausting his state-court avenues of redress, In Williams v. Taylor, 529 U.S. 362 (2000), the Court
petitioner filed the instant habeas corpus petition on interpreted 28 U.S.C. § 2254(d)(1) as requiring a distinction
November 14, 1997, raising twenty grounds for relief. The between decisions that are “contrary to” and those that
district court denied the petition. Johnson v. Bell, No. 97- involve an “unreasonable application of” clearly established
3052-DO (W.D. Tenn. Feb. 28, 2001). However, the district Supreme Court precedent. Id. at 405. A state court decision
court issued a certificate of appealability pursuant to is “contrary to” Supreme Court precedent “if the state court
28 U.S.C. § 2253(c) on the sole issue of whether petitioner arrives at a conclusion opposite to that reached by [the
received ineffective assistance of counsel at the sentencing Supreme] Court on a question of law,” or “if the state court
phase of his trial due to the failure to investigate and present confronts facts that are materially indistinguishable from a
mitigating evidence. relevant Supreme Court precedent and arrives at a result
opposite to ours.” Id. A state court decision is also “contrary
II. to” Supreme Court precedent if the state court “applies a rule
that contradicts the governing law set forth” in that precedent.
We review de novo the legal conclusions of a district court Id.in a habeas proceeding. Mitzel v. Tate, 267 F.3d 524, 530
(6th Cir. 2001). Because Johnson filed his habeas petition on A state court decision involves an “unreasonable
November 14, 1997, after the Antiterrorism and Effective application” of clearly established Supreme Court precedent
Death Penalty Act of 1996 (“AEDPA”) became effective, this “if the state court identifies the correct governing legal rule
court’s review of state court conclusions is governed by from [the Supreme] Court’s cases but unreasonably applies it
AEDPA. Id. Under AEDPA’s provisions, we may not grant to the facts of the particular state prisoner’s case.” Id. at 407.
a writ of habeas corpus for any claim that was adjudicated on
the merits in state court unless the adjudication: III.
(1) resulted in a decision that was contrary to, or With these precepts in mind, we turn to the legal issue
involved an unreasonable application of, clearly before us. At this point, the two-part test used to determine
established Federal law, as determined by the Supreme whether a criminal defendant was denied effective assistance
Court of the United States; or of counsel is extremely familiar, even if the precise manner of
its application continues to occupy the Court. Compare
(2) resulted in a decision that was based on an Wiggins v. Smith, 123 S. Ct. 2527 (2003), and Williams v.
unreasonable determination of the facts in light of the Taylor, supra, with Bell v. Cone, 535 U.S. 685 (2002). As
evidence presented in a state court proceeding. the Court put it nearly twenty years ago:
No. 01-5451 Johnson v. Bell 9 10 Johnson v. Bell No. 01-5451
First, the defendant must show that counsel’s not even ask the jury to spare his client’s life. Cone, 243 F.3d
performance was deficient. This requires showing that at 978. The Supreme Court reversed and, in doing so,
counsel made errors so serious that counsel was not reminded us that “a court must indulge a ‘strong presumption’
functioning as the “counsel” guaranteed by the Sixth that counsel’s conduct falls within the wide range of
Amendment. Second, the defendant must show that the reasonable professional assistance because it is all too easy to
deficient performance prejudiced the defense. This conclude that a particular act or omission of counsel was
requires showing that counsel’s errors were so serious as unreasonable in the harsh light of hindsight.” Cone, 122 S.
to deprive the defendant of a fair trial, a trial whose result Ct. at 1854 (citing Strickland); see also Mason, 320 F.3d at
is reliable. Unless a defendant makes both showings, it 643 (Boggs, J. dissenting) (characterizing Cone as making
cannot be said that the conviction or death sentence “abundantly clear the extremely high standard that must be
resulted from a breakdown in the adversary process that met for counsel’s representation in the penalty phase to be
renders the result unreliable. considered constitutionally inadequate”); but see Wiggins v.
Smith, 123 S. Ct. at 2536-37 (scope of investigation into
Strickland v. Washington, 466 U.S. 668, 687 (1984); see also client’s “misery as a youth” fell short of the professional
Mason v. Mitchell, 320 F.3d 604, 616 (6th Cir. 2003); Greer standards then prevailing because counsel knew of
v. Mitchell, 264 F.3d 663, 673-74 (6th Cir. 2001). “unfortunate childhood” and there was nothing to suggest that
further investigation would have been either
In assessing counsel’s performance, we inquire whether counterproductive or fruitless); Williams v. Taylor, 529 U.S.
“counsel’s representation fell below an objective standard of at 398-99 (holding that failure to investigate petitioner’s
reasonableness,” as measured by prevailing professional background, which was horrific, resulted in ineffective
norms. Rickman v. Bell, 131 F.3d 1150, 1154 (6th Cir. 1997) assistance as defined by Strickland).
(quoting Strickland, 466 U.S. at 688). This objective
reasonableness standard encompasses strategic litigation We note that the present case contains elements similar to
choices that simply fail to bear fruit. See Strickland, 466 U.S. those of previous cases in which this court has been
at 689. To establish prejudice, moreover, a defendant must sufficiently troubled by allegations of ineffective assistance
demonstrate a reasonable probability that “but for counsel’s that we either granted the writ or remanded for an evidentiary
unprofessional errors, the result of the proceeding would have hearing. Among other factors, this court has found it telling
been different.” Id. at 694. that “trial counsel did not begin preparing for the mitigation
phase of the trial until after conviction.” Greer, 264 F.3d at
In evaluating petitioner’s claim, we are mindful of the 676-77; see also Williams, 529 U.S. at 395 (finding it
Supreme Court’s opinion in Bell v. Cone, supra, which significant that counsel began preparation for mitigation only
reversed a grant of the writ by this court. See Cone v. Bell, a week before trial). Despite Greer and other Sixth Circuit
243 F.3d 961 (6th Cir. 2001). In Cone, we observed that cases that have reached a similar result, see, e.g., Mason, 320
counsel’s presentation during the sentencing phase was a F.3d at 624-26 (remanding for evidentiary hearing concerning
complete abdication of the attorney’s role. During the guilt failure to develop mitigating evidence of petitioner’s troubled
phase, counsel had presented evidence of his client’s social childhood); Coleman v. Mitchell, 268 F.3d 417, 450-52 (6th
history and mental state in an attempt to raise a defense of Cir. 2001) (ineffective assistance during mitigation for failure
insanity. In the sentencing phase, however, counsel presented to investigate or present evidence of troubled background);
no mitigating evidence at all, made no final argument, and did Skaggs v. Parker, 235 F.3d 261, 269-70 (6th Cir. 2001);
No. 01-5451 Johnson v. Bell 11 12 Johnson v. Bell No. 01-5451
Austin v. Bell, 126 F.3d 843, 848 (6th Cir. 1997); Glenn v. this testimony would likely have led to a different result
Tate, 71 F.3d 1204, 1206-08 (6th Cir. 1995), we are hard- because it is entirely possible, as the Tennessee Court of
pressed to reconcile Cone with a conclusion that counsel Criminal Appeals pointed out, that the jury could have
rendered constitutionally ineffective assistance by not concluded that petitioner was even more culpable because he
vigorously interviewing family members and pressing them had enjoyed a loving family but had brutally murdered a wife
to testify during the sentencing phase of the trial. While who loved him. Also, as the district court noted, testimony
counsel in Wiggins had sufficient information about their from family members would have opened the door to rebuttal
client’s horrific childhood to render their failure to pursue evidence about petitioner’s extramarital affairs, undercutting
further investigation professionally unreasonable, there is the positive image presented by his family.
nothing to suggest that counsel in the instant case ignored
known leads that might have helped them to prepare their The mitigating evidence proffered by petitioner falls short
case in mitigation. As the Court has reminded us, “Strickland of the quantum required by Wiggins, Cone, and Williams. In
does not require counsel to investigate every conceivable line Williams, for example, the Court found it unreasonable for the
of mitigating evidence no matter how unlikely the effort Virginia Supreme Court to conclude that petitioner had not
would be to assist the defendant at sentencing.” Wiggins, 123 been prejudiced by counsel’s failure to investigate and present
S.Ct. at 2541. readily available evidence “graphically describing Williams’
nightmarish childhood.” 529 U.S. at 395, 397-98. Likewise
Even if we assume, however, that trial counsel performed in Wiggins, the Court concluded, “Had the jury been able to
ineffectively during the mitigation phase of the trial, we find place petitioner’s excruciating life history on the mitigating
that the deficiency did not prejudice petitioner’s case. As side of the scale, there is a reasonable probability that at least
already explained, to show prejudice a defendant must one juror would have struck a different balance.” 123 S. Ct.
demonstrate that “counsel’s errors were so serious as to at 2543. This court’s cases do not particularly strengthen
deprive the defendant of a fair trial, a trial whose result is petitioner’s position either. See, e.g., Coleman, 268 F.3d at
reliable.” Strickland, 466 U.S. at 687. Also, “[t]he defendant 451-53 (finding prejudice where counsel failed to present
must show that there is a reasonable probability that, but for evidence of petitioner’s horrific childhood, his numerous
counsel’s unprofessional errors, the result of the proceeding mental and emotional disorders, and his low IQ); Carter v.
would have been different. A reasonable probability is a Bell, 218 F.3d 581, 600 (6th Cir. 2000) (finding prejudice
probability sufficient to undermine confidence in the where counsel failed to present evidence “of a childhood in
outcome.” Id. at 694. Our inquiry is limited to asking which abuse, neglect and hunger were normal”); Skaggs, 235
whether the testimony of the eight potential character F.3d at 271-72 (finding prejudice for failure to present
witnesses described above, which include five family evidence of defendant’s mild mental retardation and
members, would have created a reasonable probability that, diminished capacity, “the one topic which may have
had the jury heard from them, its verdict would have been convinced the jury that a death sentence was not justified”).
different. Given the precedents that inform our decision, we conclude
that, even if we assume that trial counsel were professionally
Undoubtedly, testimony from these family members would deficient under the Sixth Amendment for failing to present
have helped to humanize petitioner by showing the jury that mitigating testimony in the form of character witnesses,
they loved and valued him, that he had been a good son, petitioner has not shown that, “but for counsel’s
brother, and parent. On the other hand, we cannot say that
No. 01-5451 Johnson v. Bell 13 14 Johnson v. Bell No. 01-5451
unprofessional errors, the result of the proceeding would have _______________
been different.” Strickland, 466 U.S. at 694.
DISSENT
IV. _______________
The judgment of the district court is AFFIRMED. CLAY, Circuit Judge, dissenting. In holding that
Petitioner’s counsel’s performance did not fall below an
objective standard of reasonableness as measured by
prevailing professional norms, the majority engages in
speculation and conjecture about what evidence defense
counsel’s investigation would have turned up and the nature
of various witnesses’ testimony had defense counsel
performed in accordance with acceptable professional
standards in death penalty litigation. In so doing, the majority
resolves all doubts against Petitioner and holds that none of
the evidence Petitioner’s counsel might have garnered would
have sufficiently impacted the jury’s decision-making to alter
the outcome of the penalty phase trial. Contrary to the
majority, I believe that the record is too conflicted as to
whether potential witnesses would have been willing to
testify, and the nature of the testimony is too sparse to permit
the formation of a reliable opinion as to whether counsel’s
investigation into Petitioner’s family, social, or psychological
history was adequate under an objective standard. Thus, I
would remand for an evidentiary hearing so that the record
could be developed as to counsel’s investigation in this
regard, thereby allowing for an informed decision as to
whether Petitioner was prejudiced and ultimately denied his
Sixth Amendment right to effective assistance of counsel.
Petitioner claims that his trial counsel provided ineffective
assistance during the penalty phase of the trial by failing,
among other things, to investigate into Petitioner’s family,
social, or psychological background for mitigating evidence;
failing to present Petitioner’s family members, friends, and
employer as mitigating witnesses; and failing to prepare
Petitioner to testify to mitigating evidence. Petitioner’s case
thus primarily turns on whether counsel’s investigation of his
family, social, and psychological history was adequate to
No. 01-5451 Johnson v. Bell 15 16 Johnson v. Bell No. 01-5451
justify their strategy of presenting a single witness other than petition, Petitioner testified that prior to trial he provided trial
Petitioner on Petitioner’s behalf at mitigation. As in the counsel with the names of a number of witnesses who could
Supreme Court’s recent decision in Wiggins v. Smith, ___ testify on his behalf, including family members, his friend
U.S. ___, 123 S. Ct. 2527, 2538-539 (2003), if counsel’s Barry Gray, and others who could rebut evidence that
investigation was itself inadequate, counsel’s strategic choice Petitioner’s marriage was rocky. A number of Petitioner’s
of only presenting two witnesses on Petitioner’s behalf at family members and acquaintances testified at the post-
mitigation must also be considered objectively unreasonable conviction hearing. Some of them indicated that they would
under Strickland v. Washington, 466 U.S. 668, 687 (1984). have offered testimony sympathetic to Petitioner but were not
See Wiggins, 123 S. Ct. at 2538-539 (recognizing that called to testify or were never contacted by defense counsel.
“‘strategic choices made after less than complete investigation The contention of Petitioner’s counsel that a number of the
are reasonable precisely to the extent that reasonable potential witnesses were not inclined to testify is disputed by
professional judgments support the limitations on several of them.
investigation’”) (quoting Strickland, 466 U.S. at 690-91).
Specifically, Petitioner’s mother, Ruby Johnson, testified
The majority attempts to distinguish Wiggins by concluding that trial counsel did not ask her about Petitioner’s
that there is there is nothing on the record that should have background; however, she also testified that if asked, she
caused counsel to delve deeper into Petitioner’s family, would have told counsel and the jury that she did not know of
social, or psychological history. However, the majority any problems in Petitioner’s marriage, and that he was a hard
reaches this conclusion based on the limited nature of the worker who cared for his family and raised well-mannered
testimony and evidence derived from Petitioner’s post- children. Likewise, Petitioner’s father, James Johnson,
conviction hearing which, as indicated, is too sparse and testified at the post-conviction hearing that, if called, he
conflicted to make such a determination at this point of the would have testified that Petitioner was devoted to his family
proceedings. That is not to say that upon further review by and that he was a good son, a hard worker, and a good family
way of an evidentiary hearing the result reached by the man. Petitioner’s father also testified that trial counsel asked
majority would necessarily be different. But in a case where him “very little” about Petitioner’s background and schooling,
a petitioner’s life rests upon the nature of the evidence and that when he offered to testify at the mitigation hearing,
presented, it is imperative that the petitioner be allowed to counsel stated that it would be better not to offer any
present all of the evidence necessary for the court to make an testimony by family members. (J.A. at 188.)
informed decision. This is particularly so in a case such as
this where, aside from Petitioner, the sole witness called on Petitioner’s brother, James Johnson, Jr., similarly testified
Petitioner’s behalf was a minister whose testimony that that trial counsel did not ask about Petitioner’s background,
Petitioner had expressed that “he knew that ultimately one “[n]othing other than his arrest in Ohio, things of that
day he would have to give an accounting of his life to God[,]” nature[,]” despite the fact that Johnson had spent a significant
may have actually worked against him. amount of time with Petitioner and his family, and that he was
willing to testify that he never knew of any problems in
Moreover, even upon this sparse record, there is evidence Petitioner’s marriage. (J.A. at 188.) Johnson also testified
to indicate that counsel should have delved deeper into that he advised defense counsel that he was available to
Petitioner’s past family, social, and psychological history. testify on behalf of Petitioner at the mitigation trial, but that
For example, at the hearing on the first post-conviction counsel said “it would be advisable not to.” (Id.)
No. 01-5451 Johnson v. Bell 17 18 Johnson v. Bell No. 01-5451
Petitioner’s sister, Shirley Ward, testified that she was may be helpful in mitigation, and at the same time,
never contacted by trial counsel; however, if called upon she gathering names of other individuals who may be helpful
would have testified that Petitioner was a good family man in testifying on behalf of the defendant.
who did not have any problems at home, and that the
relationship between her brother and his wife seemed (J.A. at 191-92.)
harmonious and happy the weekend before the murder.
Petitioner’s other sister, Mary Ward, testified that she told Thus, even in light of the record before us, there is clear
trial counsel she was available to testify at trial and that, if indication that defense counsel should have investigated
called, she would have testified that Petitioner loved his wife further into Petitioner’s family, social, and psychological
and would not have killed her. history before making the strategic choice to present only one
other witness aside from Petitioner at the mitigation hearing.
Barry Gray, who had been a friend of Petitioner since The statements made by Petitioner’s family, close friends, and
childhood, testified at the hearing that he would have employer provided a basis upon which counsel should have
informed the jury that Petitioner was a good friend and a hard known that further inquiry into Petitioner’s past was needed
worker who seemed to care and provide for his family. for the purpose of allowing these witnesses to convince as
Officer James Ingram, a deputy jailer with the Shelby County few as one juror that Petitioner was someone undeserving of
Sheriff’s Department, testified at the hearing that when the death penalty. Further factual development by way of an
Petitioner was incarcerated, “[h]e never had a disciplinary evidentiary hearing may serve to support this conclusion
write-up or anything to my knowledge[,]” and that he would thereby establishing that counsel failed to conduct an
have been willing to testify to this effect at Petitioner’s adequate investigation; this is particularly so where, in
mitigation trial but did not receive a subpoena. (J.A. at 189- addition to the above testimony, the record indicates that
90.) David Force, an owner of Force Camping where counsel failed to obtain any medical, school, or social service
Petitioner worked, also testified at the hearing and stated that, records concerning Petitioner.
if asked, he would have said that Petitioner was a good
employee. Indeed, Respondent does not contest that trial counsel’s
performance during the penalty phase of the trial fell below
Petitioner also presented expert testimony at the post- an objective standard of reasonableness. Rather, Respondent
conviction hearing as to the manner in which background only contests the second prong of Strickland–whether trial
investigations should be performed in capital cases in counsel’s failure to investigate and present mitigating
Tennessee. That is, Jeff Blum, administrator of the Capital evidence prejudiced Petitioner. See Strickland, 466 U.S. at
Case Resource Center, testified about the necessity of 687. Respondent argues that no prejudice occurred to
speaking extensively with persons who had contact with Petitioner because the evidence merely consisted of family
Petitioner or his family members. Blum stated that: members’ statements that Petitioner was a good family man
who had a happy marriage, and a good friend and employee.
We do a fairly extensive search of all the various points
of contact an individual would have had sometime in The fallacy in Respondent’s argument, however, is that it
their past life. And through that process, gathering as assumes that the only mitigating evidence trial counsel could
much written material, papers, files, records that we can have presented was the testimony of Petitioner’s family
in that process toward discovering information we feel members, friends, and employer, and it assumes that the
No. 01-5451 Johnson v. Bell 19 20 Johnson v. Bell No. 01-5451
nature of these witnesses’ testimony was adequately fails to establish whether the scope of counsel’s investigation
developed. A proper investigation into Petitioner’s was adequate under Strickland, it cannot be said at this
background and the nature of the witnesses’ testimony may juncture whether Petitioner was prejudiced by counsel’s
have revealed other mitigating evidence to persuade the jury performance. Compare Wiggins, 123 S. Ct. 2358-539. Thus,
to sentence Petitioner to life in prison as opposed to death. I would remand for an evidentiary hearing. Only by so doing
Because there is no evidence on the record of what an could we determine whether Petitioner received
investigation of Petitioner’s background would have revealed, constitutionally adequate representation before requiring
this Court cannot conclude that Petitioner was not prejudiced Petitioner to pay the ultimate penalty. See Mason, 320 F.3d
by trial counsel’s failure to investigate and present mitigating at 620-21 (remanding the death penalty petitioner’s
evidence. Thus, this case should be remanded with ineffective assistance of counsel claim for an evidentiary
instructions that the district court conduct an evidentiary hearing where the record was inadequate to allow for
hearing on Petitioner’s claim for further factfinding as to the meaningful appellate review as to whether counsel
scope of counsel’s investigation and the nature of what performed an adequate investigation and preparation as to
evidence, if any, further investigation would have revealed. mitigating evidence); see also Griffin v. United States, 330
See Mason v. Mitchell, 320 F.3d 604, 620-21 (6th Cir. 2003) F.3d 733, 739 (6th Cir. 2003) (remanding the petitioner’s
(“Because the record as it now stands reflects disputes about § 2255 motion to the district court for an evidentiary hearing
defense counsel’s performance with respect to the sentencing where the petitioner “presented a potentially meritorious
phase of [the petitioner’s trial], we remand the case to the claim for ineffective assistance of counsel” while noting that
district court for an evidentiary hearing on this issue.”). the petitioner “deserve[d] the right to develop a record” in
order to demonstrate prejudice). I therefore respectfully
Similarly, the majority’s contention that the error, if any, dissent.
was harmless because testimony as to Petitioner’s character
as a loving husband or family man would have opened the
door to potentially unfavorable testimony, is also based on
speculation. That is to say, on the record before us, it is
impossible to conclude that any unfavorable testimony that
may have come into evidence by way of favorable character
evidence would have unanimously persuaded a jury that the
unfavorable testimony outweighed the favorable testimony.
See id.
The record before the Court, although needing further
factual development, provides clear indication that
Petitioner’s trial counsel failed in their responsibility to
investigate and present mitigating evidence at Petitioner’s
penalty phase trial. Contrary to the majority’s conclusion, it
cannot be determined, based upon the present record, whether
proper representation of Petitioner at the penalty phase trial
would have resulted in a different outcome. Since the record