Donnie E. Johnson v. Ricky Bell

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0323P (6th Cir.)
File Name: 03a0323p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
DONNIE E. JOHNSON,
Petitioner-Appellant,
v.
RICKY BELL,
Respondent-Appellee.
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No. 01-5451
Appeal from the United States District Court
for the Western District of Tennessee at Memphis.
No. 97-03052—Bernice B. Donald, District Judge.
Argued: March 25, 2003
Decided and Filed: September 10, 2003
Before: BOGGS, NORRIS, and CLAY, Circuit Judges.
_________________
COUNSEL
ARGUED: C. Mark Pickrell, Nashville, Tennessee, for
Appellant. Alice B. Lustre, OFFICE OF THE ATTORNEY
GENERAL, Nashville, Tennessee, for Appellee.
ON BRIEF: C. Mark Pickrell, Nashville, Tennessee, for
Appellant. Alice B. Lustre, Paul G. Summers, Michael E.
Moore, OFFICE OF THE ATTORNEY GENERAL,
Nashville, Tennessee, for Appellee.
2 Johnson v. Bell No. 01-5451
NORRIS, J., delivered the opinion of the court, in which
BOGGS, J., joined. CLAY, J. (pp. 14-20), delivered a
separate dissenting opinion.
_________________
OPINION
_________________
ALAN E. NORRIS, Circuit Judge. Donnie E. Johnson, a
prisoner on death row in Tennessee, appeals from the denial
of his petition for a writ of habeas corpus. 28 U.S.C. § 2254.
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
assistance. The district court declined to issue the writ on this
ground because it concluded that counsel satisfied the Sixth
Amendment standards governing the right to effective
representation as defined by Strickland v. Washington, 466
U.S. 668 (1984). We now affirm that judgment.
I.
Because the scope of this appeal is limited, the underlying
facts that gave rise to petitioner’s prosecution, while tragic,
are not germane to our discussion. They are set forth at some
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
brutally murdered his wife, Connie Johnson, on December 8,
1984, at the camping equipment center where he worked.
With the help of a co-worker, he then disposed of her body
and rather ineffectively set about covering up his crime.
During his trial, petitioner was represented by retained
counsel Jeff Crow and Clark Washington. Washington’s
background was primarily in civil practice. Crow testified in
state post-conviction proceedings that he had conducted five

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No. 01-5451 Johnson v. Bell 3
or six criminal trials before this one but could not remember
whether the one murder trial he had second-chaired had been
a death-penalty case. The sentencing phase of the trial took
place over October 3 and 4, 1985. The jury found both the
aggravating circumstances presented to it: 1) Johnson had
previously been convicted of one or more felonies that
involved the use of threat or violence; 2) the murder was
especially heinous, atrocious, and cruel in that it involved
torture or depravity of the mind. Although he did not testify
during the guilt phase of his trial, petitioner elected to take the
stand during his sentencing hearing. He denied that he killed
his wife and attempted to shift the blame to his co-worker,
who was on work release from prison at the time of the
murder. Johnson, 743 S.W.2d at 156. He conceded,
however, that he assisted in the disposal of his wife’s corpse.
Defense counsel called only one other witness in
mitigation, Robert G. Lee, a minister who had counseled
Johnson and his family while he was in jail. The minister
testified that Johnson had told him that “his faith in God was
what was sustaining him through this ordeal. He also
expressed to me that he knew that ultimately one day he
would have to give an accounting of his life to God.”
As mentioned, the jury returned a sentence of death. After
exhausting his direct appeals, petitioner initiated a post-
conviction action in the Criminal Court of Shelby County,
Tennessee, alleging for the first time that he received
ineffective assistance during the sentencing phase of his trial
because his attorneys failed adequately to investigate or
otherwise develop mitigating evidence. The court held an
evidentiary hearing, which included the testimony of
petitioner, certain of his family members, trial counsel, and
experts on the topic of proper practices in preparing for
sentencing proceedings in a capital case.
Ruby Johnson, petitioner’s mother, testified that she spoke
with attorney Washington once about her son’s case and that
“he talked very little about it to me.” She met attorney Crow
4 Johnson v. Bell No. 01-5451
only on the day of trial. According to Mrs. Johnson, she was
not asked about her son’s background or marriage even
though he and his wife had lived next door to her since their
marriage. She did not know of any problems between her son
and his wife. Rather, she believed him to be a hard worker
who cared for his family and raised well-mannered children.
Despite this information, she was not asked to testify.
James Johnson, petitioner’s father, contended that petitioner
“was one of the most devoted person[s] to his family that I
have ever seen,” and that he was a good son, a hard worker,
and a good family man. Mr. Johnson went on to assert that
trial counsel asked him very little about his son’s boyhood
and schooling. Concerning the fact that he did not testify at
trial, petitioner’s father indicated that he had been willing to
do so but had been advised by counsel that it would be
unwise. Petitioner’s brother, James C. Johnson, Jr., continued
with this theme, stating that trial counsel did not ask him
about his brother’s background other than an earlier arrest in
Ohio. Had he testified, James Johnson would have asserted
that he had spent a significant amount of time with petitioner
and his family and that “there was never an altercation of any
kind that I remember other than fun and laughter.” Like his
father, James Johnson stated that he was available to testify
on behalf of his brother, but trial counsel “said it would be
advisable not to.”
Petitioner’s sister, Shirley Ward, testified that trial counsel
never contacted her. She stated that petitioner was a good
family man who did not have any problems at home. On
cross examination, she admitted that she knew nothing of
petitioner’s alleged or admitted extramarital relationships.
Mary Ward, petitioner’s other sister, testified that she told
trial counsel that she was available to testify at trial but was
never contacted by counsel. She, too, indicated that she had
been with the deceased “numerous times and they had a very
happy marriage.” On cross examination she stated, “All I
know is that Donnie loved Connie, and he would not have

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No. 01-5451 Johnson v. Bell 5
killed her. And they had a happy marriage.” She did not
know anything about the alleged problems in petitioner’s
marriage.
In addition to these five family members, three other
potential character witnesses testified at the hearing. A
childhood friend, Barry Gray, stated that he had known
petitioner to be a good friend, hard worker, and a caring
family man. James Ingram, petitioner’s jailer pending trial,
mentioned that petitioner had caused no trouble while
incarcerated and had a clean disciplinary record. And, finally,
David Force, petitioner’s employer, asserted that petitioner
had been a good employee.
The post-conviction hearing contained contradictory
testimony concerning the extent to which trial counsel
contacted family members, evaluated their potential
testimony, and considered asking them to testify during the
sentencing phase of the proceedings. While the family
members recall some fleeting contact, they uniformly contend
that they were discouraged from testifying. Their position,
however, is somewhat at odds with the memory of trial
counsel. Jeff Crow, lead trial counsel, testified that family
members indicated to him that they did not want to take the
stand. According to him, “As I remember, we talked to the
family. We talked to the minister. We talked to Johnson.
And we decided after doing all that to handle the sentencing
hearing in the manner in which it was done.” Petitioner’s
co-counsel, Clark Washington, corroborated Crow’s
testimony that family members were reluctant to appear at
trial. “All of them wanted to help Don Johnson,” Washington
testified, “but they were concerned or afraid or not wanting to
really come in under the spotlight in a courtroom and take a
witness chair.”
The record suggests that Crow and Washington were
diligent in preparing for the guilt phase of the trial but gave
scant attention to the sentencing phase until the verdict was
returned. In fact, Crow testified that his main preparation for
6 Johnson v. Bell No. 01-5451
sentencing was to review the Tennessee code on
death-penalty procedure while the guilt portion of the trial
was under way.
On August 2, 1989, the Tennessee trial court issued an
order denying post-conviction relief. The court accepted trial
counsel’s testimony that family members “could not or would
not get involved in testifying.” Any testimony from them
“that [petitioner] was a good worker and had a good
marriage” would have opened the door to rebuttal evidence of
strains in his marriage, the court concluded. The court
indicated that family members’ testimony would not have
been enough to overcome the jury’s apparent rejection of
petitioner’s direct testimony and the “devastating” cross
examination that followed. Citing Strickland, supra, the court
found “nothing in the evidentiary hearing to suggest that there
was any failure of counsel to meet the standards of
competence required in criminal cases or that any action or
inaction on their part prejudiced the case of their client.”
Petitioner appealed to the Tennessee Court of Criminal
Appeals, which affirmed the trial court’s judgment. Johnson
v. State, No. 61, 1991 WL 111130 (Tenn. Crim. App.
June 26, 1991) (No. 61). The court reasoned as follows:
At the post-conviction hearing, members of the
appellant’s family testified they wished to testify at the
convicting trial but were not called to do so.
These witnesses testified they would have told the jury
the appellant was a hard worker who loved his family.
The major flaw in this was the fact the appellant was
convicted of murdering his wife.
We conclude this evidence would not have benefitted
the appellant, and the failure of the trial lawyer to call
these witnesses during the penalty phase of the trial gives
no right to a new trial.

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No. 01-5451 Johnson v. Bell 7
1991 WL 111130 at *1-2. (citation omitted). The Supreme
Court of Tennessee declined to review this decision.
Thereafter, petitioner initiated another, ultimately
unsuccessful post-conviction challenge that is not relevant to
the sole issue before us.
After exhausting his state-court avenues of redress,
petitioner filed the instant habeas corpus petition on
November 14, 1997, raising twenty grounds for relief. The
district court denied the petition. Johnson v. Bell, No. 97-
3052-DO (W.D. Tenn. Feb. 28, 2001). However, the district
court issued a certificate of appealability pursuant to
28 U.S.C. § 2253(c) on the sole issue of whether petitioner
received ineffective assistance of counsel at the sentencing
phase of his trial due to the failure to investigate and present
mitigating evidence.
II.
We review de novo the legal conclusions of a district court
in a habeas proceeding. Mitzel v. Tate, 267 F.3d 524, 530
(6th Cir. 2001). Because Johnson filed his habeas petition on
November 14, 1997, after the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”) became effective, this
court’s review of state court conclusions is governed by
AEDPA. Id. Under AEDPA’s provisions, we may not grant
a writ of habeas corpus for any claim that was adjudicated on
the merits in state court unless the adjudication:
(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 a state court proceeding.
8 Johnson v. Bell No. 01-5451
28 U.S.C. § 2254(d). In addition, the findings of fact made
by a state court are presumed to be correct and can be
contravened only if the habeas petitioner can show by clear
and convincing evidence that the state court’s factual findings
were erroneous. 28 U.S.C. § 2254(e)(1).
In Williams v. Taylor, 529 U.S. 362 (2000), the Court
interpreted 28 U.S.C. § 2254(d)(1) as requiring a distinction
between decisions that are “contrary to” and those that
involve an “unreasonable application of” clearly established
Supreme Court precedent. Id. at 405. A state court decision
is “contrary to” Supreme Court precedent “if the state court
arrives at a conclusion opposite to that reached by [the
Supreme] Court on a question of law,” or “if the state court
confronts facts that are materially indistinguishable from a
relevant Supreme Court precedent and arrives at a result
opposite to ours.” Id. A state court decision is also “contrary
to” Supreme Court precedent if the state court “applies a rule
that contradicts the governing law set forth” in that precedent.
Id.
A state court decision involves an “unreasonable
application” of clearly established Supreme Court precedent
“if the state court identifies the correct governing legal rule
from [the Supreme] Court’s cases but unreasonably applies it
to the facts of the particular state prisoner’s case.” Id. at 407.
III.
With these precepts in mind, we turn to the legal issue
before us. At this point, the two-part test used to determine
whether a criminal defendant was denied effective assistance
of counsel is extremely familiar, even if the precise manner of
its application continues to occupy the Court. Compare
Wiggins v. Smith, 123 S. Ct. 2527 (2003), and Williams v.
Taylor, supra, with Bell v. Cone, 535 U.S. 685 (2002). As
the Court put it nearly twenty years ago:

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No. 01-5451 Johnson v. Bell 9
First, the defendant must show that counsel’s
performance was deficient. This requires showing that
counsel made errors so serious that counsel was not
functioning as the “counsel” guaranteed by the Sixth
Amendment. Second, the defendant must show that the
deficient performance prejudiced the defense. This
requires showing that counsel’s errors were so serious as
to deprive the defendant of a fair trial, a trial whose result
is reliable. Unless a defendant makes both showings, it
cannot be said that the conviction or death sentence
resulted from a breakdown in the adversary process that
renders the result unreliable.
Strickland v. Washington, 466 U.S. 668, 687 (1984); see also
Mason v. Mitchell, 320 F.3d 604, 616 (6th Cir. 2003); Greer
v. Mitchell, 264 F.3d 663, 673-74 (6th Cir. 2001).
In assessing counsel’s performance, we inquire whether
“counsel’s representation fell below an objective standard of
reasonableness,” as measured by prevailing professional
norms. Rickman v. Bell, 131 F.3d 1150, 1154 (6th Cir. 1997)
(quoting Strickland, 466 U.S. at 688). This objective
reasonableness standard encompasses strategic litigation
choices that simply fail to bear fruit. See Strickland, 466 U.S.
at 689. To establish prejudice, moreover, a defendant must
demonstrate a reasonable probability that “but for counsel’s
unprofessional errors, the result of the proceeding would have
been different.” Id. at 694.
In evaluating petitioner’s claim, we are mindful of the
Supreme Court’s opinion in Bell v. Cone, supra, which
reversed a grant of the writ by this court. See Cone v. Bell,
243 F.3d 961 (6th Cir. 2001). In Cone, we observed that
counsel’s presentation during the sentencing phase was a
complete abdication of the attorney’s role. During the guilt
phase, counsel had presented evidence of his client’s social
history and mental state in an attempt to raise a defense of
insanity. In the sentencing phase, however, counsel presented
no mitigating evidence at all, made no final argument, and did
10 Johnson v. Bell No. 01-5451
not even ask the jury to spare his client’s life. Cone, 243 F.3d
at 978. The Supreme Court reversed and, in doing so,
reminded us that “a court must indulge a ‘strong presumption’
that counsel’s conduct falls within the wide range of
reasonable professional assistance because it is all too easy to
conclude that a particular act or omission of counsel was
unreasonable in the harsh light of hindsight.” Cone, 122 S.
Ct. at 1854 (citing Strickland); see also Mason, 320 F.3d at
643 (Boggs, J. dissenting) (characterizing Cone as making
“abundantly clear the extremely high standard that must be
met for counsel’s representation in the penalty phase to be
considered constitutionally inadequate”); but see Wiggins v.
Smith, 123 S. Ct. at 2536-37 (scope of investigation into
client’s “misery as a youth” fell short of the professional
standards then prevailing because counsel knew of
“unfortunate childhood” and there was nothing to suggest that
further investigation would have been either
counterproductive or fruitless); Williams v. Taylor, 529 U.S.
at 398-99 (holding that failure to investigate petitioner’s
background, which was horrific, resulted in ineffective
assistance as defined by Strickland).
We note that the present case contains elements similar to
those of previous cases in which this court has been
sufficiently troubled by allegations of ineffective assistance
that we either granted the writ or remanded for an evidentiary
hearing. Among other factors, this court has found it telling
that “trial counsel did not begin preparing for the mitigation
phase of the trial until after conviction.” Greer, 264 F.3d at
676-77; see also Williams, 529 U.S. at 395 (finding it
significant that counsel began preparation for mitigation only
a week before trial). Despite Greer and other Sixth Circuit
cases that have reached a similar result, see, e.g., Mason, 320
F.3d at 624-26 (remanding for evidentiary hearing concerning
failure to develop mitigating evidence of petitioner’s troubled
childhood); Coleman v. Mitchell, 268 F.3d 417, 450-52 (6th
Cir. 2001) (ineffective assistance during mitigation for failure
to investigate or present evidence of troubled background);
Skaggs v. Parker, 235 F.3d 261, 269-70 (6th Cir. 2001);

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No. 01-5451 Johnson v. Bell 11
Austin v. Bell, 126 F.3d 843, 848 (6th Cir. 1997); Glenn v.
Tate, 71 F.3d 1204, 1206-08 (6th Cir. 1995), we are hard-
pressed to reconcile Cone with a conclusion that counsel
rendered constitutionally ineffective assistance by not
vigorously interviewing family members and pressing them
to testify during the sentencing phase of the trial. While
counsel in Wiggins had sufficient information about their
client’s horrific childhood to render their failure to pursue
further investigation professionally unreasonable, there is
nothing to suggest that counsel in the instant case ignored
known leads that might have helped them to prepare their
case in mitigation. As the Court has reminded us, “Strickland
does not require counsel to investigate every conceivable line
of mitigating evidence no matter how unlikely the effort
would be to assist the defendant at sentencing.” Wiggins, 123
S.Ct. at 2541.
Even if we assume, however, that trial counsel performed
ineffectively during the mitigation phase of the trial, we find
that the deficiency did not prejudice petitioner’s case. As
already explained, to show prejudice a defendant must
demonstrate that “counsel’s errors were so serious as to
deprive the defendant of a fair trial, a trial whose result is
reliable.” Strickland, 466 U.S. at 687. Also, “[t]he defendant
must show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the
outcome.” Id. at 694. Our inquiry is limited to asking
whether the testimony of the eight potential character
witnesses described above, which include five family
members, would have created a reasonable probability that,
had the jury heard from them, its verdict would have been
different.
Undoubtedly, testimony from these family members would
have helped to humanize petitioner by showing the jury that
they loved and valued him, that he had been a good son,
brother, and parent. On the other hand, we cannot say that
12 Johnson v. Bell No. 01-5451
this testimony would likely have led to a different result
because it is entirely possible, as the Tennessee Court of
Criminal Appeals pointed out, that the jury could have
concluded that petitioner was even more culpable because he
had enjoyed a loving family but had brutally murdered a wife
who loved him. Also, as the district court noted, testimony
from family members would have opened the door to rebuttal
evidence about petitioner’s extramarital affairs, undercutting
the positive image presented by his family.
The mitigating evidence proffered by petitioner falls short
of the quantum required by Wiggins, Cone, and Williams. In
Williams, for example, the Court found it unreasonable for the
Virginia Supreme Court to conclude that petitioner had not
been prejudiced by counsel’s failure to investigate and present
readily available evidence “graphically describing Williams’
nightmarish childhood.” 529 U.S. at 395, 397-98. Likewise
in Wiggins, the Court concluded, “Had the jury been able to
place petitioner’s excruciating life history on the mitigating
side of the scale, there is a reasonable probability that at least
one juror would have struck a different balance.” 123 S. Ct.
at 2543. This court’s cases do not particularly strengthen
petitioner’s position either. See, e.g., Coleman, 268 F.3d at
451-53 (finding prejudice where counsel failed to present
evidence of petitioner’s horrific childhood, his numerous
mental and emotional disorders, and his low IQ); Carter v.
Bell, 218 F.3d 581, 600 (6th Cir. 2000) (finding prejudice
where counsel failed to present evidence “of a childhood in
which abuse, neglect and hunger were normal”); Skaggs, 235
F.3d at 271-72 (finding prejudice for failure to present
evidence of defendant’s mild mental retardation and
diminished capacity, “the one topic which may have
convinced the jury that a death sentence was not justified”).
Given the precedents that inform our decision, we conclude
that, even if we assume that trial counsel were professionally
deficient under the Sixth Amendment for failing to present
mitigating testimony in the form of character witnesses,
petitioner has not shown that, “but for counsel’s

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No. 01-5451 Johnson v. Bell 13
unprofessional errors, the result of the proceeding would have
been different.” Strickland, 466 U.S. at 694.
IV.
The judgment of the district court is AFFIRMED.
14 Johnson v. Bell No. 01-5451
_______________
DISSENT
_______________
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

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No. 01-5451 Johnson v. Bell 15
justify their strategy of presenting a single witness other than
Petitioner on Petitioner’s behalf at mitigation. As in the
Supreme Court’s recent decision in Wiggins v. Smith, ___
U.S. ___, 123 S. Ct. 2527, 2538-539 (2003), if counsel’s
investigation was itself inadequate, counsel’s strategic choice
of only presenting two witnesses on Petitioner’s behalf at
mitigation must also be considered objectively unreasonable
under Strickland v. Washington, 466 U.S. 668, 687 (1984).
See Wiggins, 123 S. Ct. at 2538-539 (recognizing that
“‘strategic choices made after less than complete investigation
are reasonable precisely to the extent that reasonable
professional judgments support the limitations on
investigation’”) (quoting Strickland, 466 U.S. at 690-91).
The majority attempts to distinguish Wiggins by concluding
that there is there is nothing on the record that should have
caused counsel to delve deeper into Petitioner’s family,
social, or psychological history. However, the majority
reaches this conclusion based on the limited nature of the
testimony and evidence derived from Petitioner’s post-
conviction hearing which, as indicated, is too sparse and
conflicted to make such a determination at this point of the
proceedings. That is not to say that upon further review by
way of an evidentiary hearing the result reached by the
majority would necessarily be different. But in a case where
a petitioner’s life rests upon the nature of the evidence
presented, it is imperative that the petitioner be allowed to
present all of the evidence necessary for the court to make an
informed decision. This is particularly so in a case such as
this where, aside from Petitioner, the sole witness called on
Petitioner’s behalf was a minister whose testimony that
Petitioner had expressed that “he knew that ultimately one
day he would have to give an accounting of his life to God[,]”
may have actually worked against him.
Moreover, even upon this sparse record, there is evidence
to indicate that counsel should have delved deeper into
Petitioner’s past family, social, and psychological history.
For example, at the hearing on the first post-conviction
16 Johnson v. Bell No. 01-5451
petition, Petitioner testified that prior to trial he provided trial
counsel with the names of a number of witnesses who could
testify on his behalf, including family members, his friend
Barry Gray, and others who could rebut evidence that
Petitioner’s marriage was rocky. A number of Petitioner’s
family members and acquaintances testified at the post-
conviction hearing. Some of them indicated that they would
have offered testimony sympathetic to Petitioner but were not
called to testify or were never contacted by defense counsel.
The contention of Petitioner’s counsel that a number of the
potential witnesses were not inclined to testify is disputed by
several of them.
Specifically, Petitioner’s mother, Ruby Johnson, testified
that trial counsel did not ask her about Petitioner’s
background; however, she also testified that if asked, she
would have told counsel and the jury that she did not know of
any problems in Petitioner’s marriage, and that he was a hard
worker who cared for his family and raised well-mannered
children. Likewise, Petitioner’s father, James Johnson,
testified at the post-conviction hearing that, if called, he
would have testified that Petitioner was devoted to his family
and that he was a good son, a hard worker, and a good family
man. Petitioner’s father also testified that trial counsel asked
him “very little” about Petitioner’s background and schooling,
and that when he offered to testify at the mitigation hearing,
counsel stated that it would be better not to offer any
testimony by family members. (J.A. at 188.)
Petitioner’s brother, James Johnson, Jr., similarly testified
that trial counsel did not ask about Petitioner’s background,
“[n]othing other than his arrest in Ohio, things of that
nature[,]” despite the fact that Johnson had spent a significant
amount of time with Petitioner and his family, and that he was
willing to testify that he never knew of any problems in
Petitioner’s marriage. (J.A. at 188.) Johnson also testified
that he advised defense counsel that he was available to
testify on behalf of Petitioner at the mitigation trial, but that
counsel said “it would be advisable not to.” (Id.)

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No. 01-5451 Johnson v. Bell 17
Petitioner’s sister, Shirley Ward, testified that she was
never contacted by trial counsel; however, if called upon she
would have testified that Petitioner was a good family man
who did not have any problems at home, and that the
relationship between her brother and his wife seemed
harmonious and happy the weekend before the murder.
Petitioner’s other sister, Mary Ward, testified that she told
trial counsel she was available to testify at trial and that, if
called, she would have testified that Petitioner loved his wife
and would not have killed her.
Barry Gray, who had been a friend of Petitioner since
childhood, testified at the hearing that he would have
informed the jury that Petitioner was a good friend and a hard
worker who seemed to care and provide for his family.
Officer James Ingram, a deputy jailer with the Shelby County
Sheriff’s Department, testified at the hearing that when
Petitioner was incarcerated, “[h]e never had a disciplinary
write-up or anything to my knowledge[,]” and that he would
have been willing to testify to this effect at Petitioner’s
mitigation trial but did not receive a subpoena. (J.A. at 189-
90.) David Force, an owner of Force Camping where
Petitioner worked, also testified at the hearing and stated that,
if asked, he would have said that Petitioner was a good
employee.
Petitioner also presented expert testimony at the post-
conviction hearing as to the manner in which background
investigations should be performed in capital cases in
Tennessee. That is, Jeff Blum, administrator of the Capital
Case Resource Center, testified about the necessity of
speaking extensively with persons who had contact with
Petitioner or his family members. Blum stated that:
We do a fairly extensive search of all the various points
of contact an individual would have had sometime in
their past life. And through that process, gathering as
much written material, papers, files, records that we can
in that process toward discovering information we feel
18 Johnson v. Bell No. 01-5451
may be helpful in mitigation, and at the same time,
gathering names of other individuals who may be helpful
in testifying on behalf of the defendant.
(J.A. at 191-92.)
Thus, even in light of the record before us, there is clear
indication that defense counsel should have investigated
further into Petitioner’s family, social, and psychological
history before making the strategic choice to present only one
other witness aside from Petitioner at the mitigation hearing.
The statements made by Petitioner’s family, close friends, and
employer provided a basis upon which counsel should have
known that further inquiry into Petitioner’s past was needed
for the purpose of allowing these witnesses to convince as
few as one juror that Petitioner was someone undeserving of
the death penalty. Further factual development by way of an
evidentiary hearing may serve to support this conclusion
thereby establishing that counsel failed to conduct an
adequate investigation; this is particularly so where, in
addition to the above testimony, the record indicates that
counsel failed to obtain any medical, school, or social service
records concerning Petitioner.
Indeed, Respondent does not contest that trial counsel’s
performance during the penalty phase of the trial fell below
an objective standard of reasonableness. Rather, Respondent
only contests the second prong of Strickland–whether trial
counsel’s failure to investigate and present mitigating
evidence prejudiced Petitioner. See Strickland, 466 U.S. at
687. Respondent argues that no prejudice occurred to
Petitioner because the evidence merely consisted of family
members’ statements that Petitioner was a good family man
who had a happy marriage, and a good friend and employee.
The fallacy in Respondent’s argument, however, is that it
assumes that the only mitigating evidence trial counsel could
have presented was the testimony of Petitioner’s family
members, friends, and employer, and it assumes that the

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No. 01-5451 Johnson v. Bell 19
nature of these witnesses’ testimony was adequately
developed. A proper investigation into Petitioner’s
background and the nature of the witnesses’ testimony may
have revealed other mitigating evidence to persuade the jury
to sentence Petitioner to life in prison as opposed to death.
Because there is no evidence on the record of what an
investigation of Petitioner’s background would have revealed,
this Court cannot conclude that Petitioner was not prejudiced
by trial counsel’s failure to investigate and present mitigating
evidence. Thus, this case should be remanded with
instructions that the district court conduct an evidentiary
hearing on Petitioner’s claim for further factfinding as to the
scope of counsel’s investigation and the nature of what
evidence, if any, further investigation would have revealed.
See Mason v. Mitchell, 320 F.3d 604, 620-21 (6th Cir. 2003)
(“Because the record as it now stands reflects disputes about
defense counsel’s performance with respect to the sentencing
phase of [the petitioner’s trial], we remand the case to the
district court for an evidentiary hearing on this issue.”).
Similarly, the majority’s contention that the error, if any,
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
20 Johnson v. Bell No. 01-5451
fails to establish whether the scope of counsel’s investigation
was adequate under Strickland, it cannot be said at this
juncture whether Petitioner was prejudiced by counsel’s
performance. Compare Wiggins, 123 S. Ct. 2358-539. Thus,
I would remand for an evidentiary hearing. Only by so doing
could we determine whether Petitioner received
constitutionally adequate representation before requiring
Petitioner to pay the ultimate penalty. See Mason, 320 F.3d
at 620-21 (remanding the death penalty petitioner’s
ineffective assistance of counsel claim for an evidentiary
hearing where the record was inadequate to allow for
meaningful appellate review as to whether counsel
performed an adequate investigation and preparation as to
mitigating evidence); see also Griffin v. United States, 330
F.3d 733, 739 (6th Cir. 2003) (remanding the petitioner’s
§ 2255 motion to the district court for an evidentiary hearing
where the petitioner “presented a potentially meritorious
claim for ineffective assistance of counsel” while noting that
the petitioner “deserve[d] the right to develop a record” in
order to demonstrate prejudice). I therefore respectfully
dissent.

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