Joseph Johnson v. Kevin Genovese
Joseph Johnson v. Kevin Genovese
Opinion
Petitioner Joseph Johnson was convicted of multiple felonies in Tennessee state court arising out of the robbery of a Nashville Taco Bell. He now seeks a writ of habeas corpus, arguing that his Sixth Amendment right to counsel was violated by his trial counsel's deficient performance in the pretrial plea-negotiation phase of his *932 state-court proceedings and that the state court's opposite conclusion was contrary to or involved an unreasonable application of federal law. The district court found no basis for habeas relief and, for the reasons that follow, we affirm.
I.
In November of 2003, petitioner and a friend robbed a Taco Bell of approximately $ 200 to $ 300.
State v. Johnson
, M2007-01644-CCA-R3-CD,
So he went to trial, where a Tennessee jury subsequently convicted him of all four charges: two counts of aggravated robbery, one count of aggravated assault, and one count of felony evading arrest, though one aggravated-robbery conviction was later changed to aggravated assault due to double jeopardy concerns. Id . at *1, *5. The trial court sentenced him to twenty-eight years' imprisonment for aggravated robbery, eight years' imprisonment for one conviction of aggravated assault, ten years' imprisonment on the other aggravated-assault conviction, and eight years' imprisonment for evading arrest, all to be served consecutively, for a total of fifty-four years in prison. Id . On direct appeal, petitioner raised sufficiency-of-the-evidence claims on all four convictions, challenges to his jury instructions, and challenges to his sentences' lengths and their consecutive nature. Id . at *5-19. The Tennessee Court of Criminal Appeals (TCCA) affirmed, and the Tennessee Supreme Court denied him permission to appeal. See id ., perm. app. denied (Feb. 22, 2010).
Petitioner then filed a timely motion for postconviction relief in state court. Among the numerous issues he raised was a claim of ineffective assistance of trial counsel during the plea-negotiation process. At an evidentiary hearing on the petition, he testified that his attorney never advised him of the 20-year plea offer until years after trial, when he received the state's discovery packet. When asked if he would have accepted the offer, petitioner testified variously that "you damn skippy, with 50 something years, I would have took 20 years," and "[i]t's possible, if I knew what I was facing going to trial. It's highly likely, yes, I would have accepted that 20 year deal." But throughout the postconviction proceedings, petitioner maintained his innocence of the crimes, and even speculated that he may have been misidentified.
His trial counsel, Walwyn, also testified at the hearing. On the issue of plea offers, Walwyn stated that he
explained to [petitioner], because of his prior record, it's, you know, the [prosecutor] is taking a hard stance on this case. And basically they're wanting him to plead to a lot of time, and he said, ["]well, I'm innocent, I didn't rob anybody, I didn't do it.["] He always said the same thing .... But in any event, even prior to the trial, he basically said that I'm not taking a deal of any sort.
He later reiterated that he "did relay the offer" to petitioner, but petitioner told him "he was not taking any time for this."
The postconviction court denied petitioner relief in a written order, crediting Walwyn's testimony that he communicated the offer and that petitioner was not interested
*933
in taking any plea agreement. Petitioner again appealed to the TCCA, which again affirmed.
Johnson v. State
, M2012-02310-CCA-R3-PC,
Petitioner then timely filed this petition for habeas corpus. He raised numerous claims of ineffective assistance, including that Walwyn provided constitutionally deficient counsel during the plea-negotiation stage. In a thorough opinion, the district court dismissed the petition. On the pertinent ineffective-assistance issue, the district court determined that the TCCA opinion did not contradict or unreasonably apply clearly established federal law, nor did that court base its decision on an unreasonable determination of the facts. We granted a certificate of appealability limited to his claim of ineffective assistance during plea bargaining.
II.
"In an appeal from the denial of habeas relief, we review the district court's legal conclusions de novo and its factual findings for clear error."
Scott v. Houk
,
III.
The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall ... have the Assistance of Counsel for his defence." U.S. Const. amend. VI. It includes "the right to effective counsel-which imposes a baseline requirement of competence."
*934
United States v. Gonzalez-Lopez
,
Under
Strickland
's two-part framework, a criminal defendant claiming ineffective assistance during plea negotiations must prove that (1) counsel's performance was deficient, i.e., "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment," and (2) the deficient performance prejudiced the defense.
Recognizing the high bar AEDPA has placed in front of him, petitioner raises challenges to three aspects of the TCCA decision: (1) that court's erroneous legal analysis of the ineffective-assistance issue, (2) its incorrect and unreasonable factual determination about his willingness to accept a plea, and (3) its unreasonable application of the law to the facts. We address each contention in turn.
A.
Petitioner's first argument is that the TCCA legally erred by applying an impermissibly high burden of proof to his charge of ineffective assistance of counsel. We disagree. For this, he focuses on two sentences in the TCCA's opinion:
In light of the postconviction court's factual finding that the petitioner was "not interested in taking any plea" and other evidence suggesting that the petitioner was not interested in plea bargaining, we conclude that the petitioner has failed to establish by clear and convincing evidence that he would have taken the twenty-year plea offer. Accordingly, the petitioner has not shown a reasonable probability that, but for trial counsel's failure to alert him to his potential sentencing exposure, the plea offer would have been presented to and accepted by the sentencing court.
Johnson
,
Petitioner must show that the state court "arrive[d] at a conclusion opposite to that reached by [the Supreme Court] on a question of law" or that it "confront[ed] facts that are materially indistinguishable from a relevant Supreme Court precedent and arrive[d] at a result opposite" to that reached by the Supreme Court.
Williams v. Taylor
,
In
Lafler
, the Supreme Court reiterated that the
Strickland
prejudice standard applied to plea-bargaining. 566 U.S. at 163,
A reasonable probability, the Court has held, "is a probability sufficient to undermine confidence in the outcome," which "requires a substantial ... likelihood of a different result," "not just [a] conceivable" one.
Cullen v. Pinholster
,
The district court held that
Holland v. Jackson
,
In context, however, this statement is reasonably read as addressing the general burden of proof in postconviction proceedings with regard to factual contentions-for example, those relating to whether defense counsel's performance was deficient. Although it is possible to read it as referring also to the question whether the deficiency was prejudicial, thereby supplanting Strickland , such a reading would needlessly create internal inconsistency in the opinion.
Id
. After noting two other portions of the TCCA opinion that this court erroneously faulted for applying an incorrect burden, the Court chastised us for violating two of its prescriptions in state-habeas cases: (1) "state-court decisions [must] be given the benefit of the doubt," and (2) "[r]eadiness to attribute error is inconsistent with the presumption that state courts know and
*936
follow the law."
Id
. at 655,
The district court correctly concluded
Holland
controls on this issue. Treating the TCCA's reference to a "clear and convincing evidence" standard and a "reasonable probability" standard in back-to-back sentences as a clear legal error "is inconsistent with the presumption that state courts know and follow the law."
Id
. Earlier in the opinion, in the standard of review section, the TCCA cited
And the TCCA opinion bolsters our conclusion by listing, immediately before the "clear and convincing evidence" sentence, three pieces of "evidence which suggest[ed] the petitioner would not have accepted any plea offer."
Johnson
,
As a result, the opinion is best read as merely noting the Tennessee rule in postconviction proceedings that a petitioner must prove his allegations of fact by clear and convincing evidence. And the propriety of the court's decision is reinforced by its
express
use of the correct standard-"a reasonable probability"-in coming to its conclusion.
Johnson
,
Petitioner's attempt to distinguish
Holland
is unpersuasive. He argues that "
Holland
... is nothing like the instant case because in
Holland
the TCCA made no clear error," and the TCCA's statement at
*937
issue in that case "was completely true as long as one understood it to refer, in accordance with the governing statute, to allegations 'of fact'-and there was no reason to understand that statement to mean otherwise." But the same is true here. Both cases involve the argument that the TCCA applied an improperly burdensome standard to a claim of ineffective assistance of counsel, contrary to Supreme Court caselaw. And, in
Holland
, the Supreme Court chastised us for treating an ambiguous statement as legal error because we failed to give the state-court opinion the benefit of the doubt.
Holland
notwithstanding, petitioner directs us to
Vasquez v. Bradshaw
,
Finally, and only in his reply brief, petitioner argues that the TCCA erred in applying the clear-and-convincing-evidence standard to the question of whether he would have taken the twenty-year plea offer because, under Tennessee law, the clear-and-convincing-evidence standard only applies to issues of historical fact, not the question of whether petitioner hypothetically would have accepted the plea deal had he received effective counsel. We typically do not entertain arguments raised for the first time in the reply brief.
United States v. Galaviz
,
Given the TCCA's citation of the controlling law (
Strickland
and
Lafler
) and the frequency that the proper standard ("reasonable probability") peppers the opinion-including immediately after the allegedly offending "clear and convincing evidence" statement-the TCCA did not act contrary to federal law.
See
Holland
,
B.
Next, petitioner contends that the TCCA made an unreasonable finding of fact when it concluded that he was equivocal on whether he would have accepted the 20-year plea offer had he known the actual amount of prison time he faced after trial. Again, we find no error sufficient to overcome AEDPA's substantial deference to state-court decisions.
Under AEDPA, we may only grant a petition for habeas corpus if the state-court "adjudication of the claim ... 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."
Petitioner claims that he was consistent in his testimony that he would have accepted the plea offer had he been properly advised, and that the TCCA mischaracterized his testimony by cherry-picking his single use of the word "possible" and amplifying its meaning. Given the TCCA's determination, it is important to consider exactly what petitioner said at the hearing. First, on direct examination:
Q. Okay. So it's your position that Mr. Walwyn never conveyed this 20 year offer to you?
A. No.
Q. If he had, would you have taken it?
A. I don't mean no disrespect, but you damn skippy, with 50 something years, I would have took 20 years.
Then, on cross-examination:
Q. Were you saying that if you would have known about it, you would have plead[ed] guilty to a 20 year sentence on aggravated robbery?
*939 A. It's possible , if I knew what I was facing going to trial. It's highly likely, yes, I would have accepted that 20 year deal.
Q. But you've been telling us all morning, you didn't commit a robbery?
A. The point is, if I'm facing 54 years and my attorney would have explained to me, under any circumstance, I would have taken 20 at 35 percent, if I was facing a jay walking.
Q. You threw out the time that you were charged before this trial happened, insisted that you were innocent of these charges, right?
A. True. I tell you I'm innocent today.
Q. You still say [you're] innocent?
A. Most definitely.
Q. But you would have plead[ed] guilty to aggravated robbery, you're claiming --
A. With my background, it's to the best interest of anybody coming in these systems.
Q. Because you have multiple robberies in your record?
A. I have a background, yes, I have been -- I committed those charges, and I actually plead[ed] guilty to them, because I was guilty. I went to trial on this charge because I wasn't guilty. And if I would have knew that I was, could have received a 20 year sentence and my attorney would have consulted me and let me know what I was facing, I would have took the 20 years.
(Emphasis added).
Petitioner argues that the TCCA gave undue weight to his use of the word "possible" during cross-examination because "possible" has two distinct meanings: one, the opposite of impossible; the other, a word specifically chosen to reflect a degree of probability (less than probable but within the realm of possibility). He further argues that the context of the quote shows that he used "possible" in the first sense-the opposite of "impossible"-and that nothing about his answers on this topic justify a conclusion that he ever meant a probability less than likely. This is a sensible interpretation of his testimony. And it might even be the best interpretation, given the context. But that does not require the conclusion that the TCCA was
unreasonable
for determining that his use of "possible" showed equivocation.
See
Wood
,
Moreover, the TCCA did not rely solely on this factual determination. Instead, the TCCA based its conclusion on petitioner's equivocal testimony, his consistent assertions of innocence throughout trial and postconviction proceedings, and Walwyn's testimony that petitioner told him he wasn't interested in taking any plea agreement at all.
Johnson
,
C.
Finally, petitioner claims that the TCCA unreasonably applied the law to the facts when it ignored that the Strickland prejudice test is objective, not subjective, and *940 wrongly gave more weight to petitioner's equivocal statements than the fact that any reasonable defendant in his shoes would have been motivated to take the favorable plea bargain. But yet again, he has not met his heavy burden under AEDPA.
In this argument, petitioner relies on our opinion in
Sawaf v. United States
,
[T]he district court should have started its analysis by assuming that Sawaf had been prejudiced with regard to the plea negotiations, and then asked whether there was evidence to rebut that presumption. Instead, the district court determined that Sawaf's claim that he would have entered a guilty plea if adequately informed was not credible, given Sawaf's continued insistence that he was innocent, prior to and during the trial, after the trial, and even during the evidentiary hearing, and effectively declined to credit Sawaf with the applicable presumption of prejudice.
Id . Though we gave clear-error deference to the trial court's credibility determination, we still reversed for failure to credit Sawaf with the presumption he was due. Id .
Sawaf
fails to provide petitioner relief for three reasons. First,
Sawaf
is distinguishable because it analyzed a petition arising under
Third and finally, it is not at all clear that the TCCA opinion violates
Sawaf
's prescription. There, we held that a large sentencing disparity between a plea offer and the sentence received after trial establishes a mere presumption of prejudice that may be
rebutted
.
IV.
We affirm the judgment of the district court.
This rule is consistent with AEDPA's own rules and standards for factual determinations.
See
And even if
Vasquez
were both persuasive and binding on this panel, its reasoning would not control this case because the majority relied upon various deficiencies that aren't present here. For example, the Ohio court expressed an allegedly erroneous standard for prejudice and then directly relied on it in its analysis.
Id
. at 110-11 (majority op.). But here, immediately after stating the higher burden plaintiff alleges the TCCA applied, the opinion reiterated the correct
Strickland
/
Lafler
standard and concluded that petitioner did not meet it.
Johnson
,
Reference
- Full Case Name
- Joseph Lamont JOHNSON, Jr., Petitioner-Appellant, v. Kevin GENOVESE, Warden, Respondent-Appellee.
- Cited By
- 26 cases
- Status
- Published