Johnson, et al v. Cockrell

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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m 01-51199
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KIA LEVOY JOHNSON,
Petitioner-Appellant,
VERSUS
JANIE COCKRELL,
DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,
Respondent-Appellee.
_________________________
Appeal from the United States District Court
for the Western District of Texas
_________________________
July 31, 2002
Before JONES, SMITH, and
EMILIO M. GARZA, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
I.
In 1995, Kia Johnson was convicted of the
capital murder of William Rains and sentenced
to death. He now seeks a certificate of appeal-
ability (“COA”) to challenge the death
sentence. We deny a COA.
A security guard at a convenience store dis-
covered the body of William Rains, a clerk,
behind the counter. The police were able to
obtain a surveillance tape that showed the per-
petrator and showed the victim trying to reach
for a telephone for forty-five minutes after he
was shot.
The next day, Ray Thompson, a long-time
acquiantance of Johnson’s, called police when
he recognized Johnson as the person on the
tape when it was shown on television. The
police went to Thompson’s home and showed
him the full videotape, whereupon he again
identified Johnson.

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A warrant was issued for Johnson’s arrest;
he soon was located in the custody of police,
having been arrested on an unrelated charge.
A police officer identified Johnson as the man
in the tape because he was wearing the same
distinctive clothing. Henry Wright, another of
Johnson’s acquiantances, also identified him as
the man portrayed in the tape.
II.
During the penalty phase of the trial,
Johnson’s attorney called the victim’s father,
Julian Rains, as a witness. Rains testified to
the admirable qualities of his deceased son and
stated that “I want the guilty person punished,
whether it be Mr. Johnson or whomever it may
be because I don’t think my son could rest un-
til his murderer is taken care of.”
Johnson’s conviction was upheld by the
Texas Court of Criminal Appeals in 1996. In
1997 and 1998, the Court of Criminal Appeals
rejected two habeas corpus petitions. In No-
vember 2001, Johnson’s habeas corpus
petition and request for COA were rejected in
federal district court.
Johnson’s petition to the district court cited
a variety of grounds. He now appeals on only
one of these: The claim that his attorney’s
calling of the victim’s father as a witness at the
punishment phase of the trial, and the
substance of his questioning of that witness,
constituted ineffective assistance of counsel.
III.
The state argues that Johnson’s ineffective
assistance claim is barred because he failed to
raise it in the district court. To the contrary,
the record and district court opinion show un-
equivocally that the claim was in fact raised
and considered. See Johnson v. Cockrell, No.
SA-98-CA-133-EP, at 43-48 (W.D. Tex. Nov.
15, 2001) (considering and rejecting the
ineffective assistance claim now under
appeal).1 We must therefore consider
Johnson’s claim on the merits.
IV.
A.
To obtain a COA, Johnson must make a
“substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)
(1994). On appeal, such a showing requires
proof that “reasonable jurists would find the
district court’s assessment of the constitutional
claims debatable or wrong.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000).
Because Johnson’s ineffective assistance
claim was previously considered and rejected
by a state court, it is also governed by the
Anti-Terrorism and Effective Death Penalty
Act of 1996 (“AEDPA”), under which a state
court decision will be overturned in a habeas
proceeding only if it is “contrary to, or
involved an unreasonable application of,
clearly established Federal law, as determined
by the Supreme Court of the United States.”
28 U.S.C. § 2254(d)(1) (1994).2
1 The state further contends that Johnson did not
argue to the district court that Julian Rains’s tes-
timony constitutes grounds for an ineffective as-
sistance claim because it allegedly encouraged the
jury to impose a sentence of death. Johnson, how-
ever, did in fact make this argument in one of his
briefs to the district court.
2 Johnson’s case is governed by AEDPA
because his habeas petition was filed after April
24, 1996. See Lindh v. Murphy, 521 U.S. 320,
324-26 (1997) (describing time-frame for
application of AEDPA).

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B.
To sustain a claim of inadequate assistance
of counsel, a defendant usually must meet the
standards of Strickland v. Washington, 466
U.S. 668 (1984), which requires proof that
(1) “counsel’s performance was deficient” and
(2) “the deficient performance prejudiced the
defense” so gravely as to “deprive the
defendant of a fair trial, a trial whose result is
reliable.” Id. at 687. “There are, however,
circumstances that are so likely to prejudice
the accused that the cost of litigating their
effect in a particular case is unjustified.”
United States v. Cronic, 466 U.S. 648, 658
(1984). In such cases, where the defendant is
constructively denied assistance of counsel,
prejudice is automatically assumed and need
not be proven. Id. at 658-62.
Johnson argues that his counsel’s
examination of Julian Rains was so egregious
an error that it falls within the narrow Cronic
exception to the usual requirements imposed
on ineffective assistance claims. This
contention is without merit.
“‘A constructive denial of counsel occurs
. . . in only a very narrow spectrum of cases
where the circumstances leading to counsel’s
ineffectiveness are so egregious that the
defendant was in effect denied any meaningful
assistance at all.’” Jackson v. Johnson, 150
F.3d 520, 525 (5th Cir. 1998) (quoting Chil-
dress v. Johnson, 103 F.3d 1221, 1229 (5th
Cir. 1997)) (emphasis added).3 The Supreme
Court recently has emphasized that for Cronic
to apply, “the attorney’s failure must be
complete.” Bell v. Cone, 122 S. Ct. 1843,
1851 (2002). “For purposes of distinguishing
between the rule of Strickland and that of
Cronic,” the Court held that a case does not
come under Cronic merely because counsel
failed to “oppose the prosecution . . . at
specific points” in the trial. Id. It is not
enough for the defendant to show mere “shod-
dy representation” or to prove the existence of
“errors, omissions, or strategic blunders” by
counsel. Jackson, 150 F.3d at 525. “[B]ad
lawyering, regardless of how bad, does not
support the per se presumption of prejudice.”
Id. (citations omitted).4
Johnson’s attorney undeniably rendered
“meaningful assistance” to his client
throughout the guilt and penalty phases. Id.
Counsel’s examination of Julian Rains
apparently was part of a strategy intended to
elicit some statement indicating that the
defendant should be spared the death penalty.
This is indicated, for example, by the fact that
Johnson’s attorney asked Rains whether he
was “a religious man,” which implies that
counsel may have been seeking to elicit a plea
that Johnson be spared for religious reasons.
Counsel cited Rains’s testimony in his closing
argument asking that Johnson be spared the
death penalty. Although this strategy may
have been mistaken, it at most constitutes a
3 Cf. Burdine v. Johnson, 262 F.3d 336, 349
(5th Cir. 2001) (en banc) (upholding a Cronic
claim in a case where the defendant’s lawyer was
asleep during parts of the trial because “[u]ncon-
scious counsel equates to no counsel at all. Un-
conscious counsel does not analyze, object, listen
(continued...)
3(...continued)
or in any way exercise judgment on behalf of the
client”), cert. denied, 122 S. Ct. 2347 (2002).
Johnson’s counsel “exercise[d] judgment” on be-
half of his client throughout, and he was certainly
far superior to having “no counsel at all.” Id.
4 See also Gochicoa v. Johnson, 238 F.3d 278,
284-85 (5th Cir. 2001) (same).

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“strategic blunder” or “bad lawyering” of
precisely the sort that under our precedents is
insufficient to support a Cronic claim. Id.
Likewise, counsel’s performance fell far short
of the “complete” failure required by the
Supreme Court. Bell, 122 S. Ct. at 1851.
C.
Johnson’s ineffective assistance claim must
therefore be analyzed under the standards of
Washington, in which the Court stressed that
“[j]udicial scrutiny of counsel’s performance
must be highly deferential” and that “every ef-
fort [must] be made to eliminate the distorting
effects of hindsight.” Washington, 466 U.S. at
689. Thus, courts must “indulge a strong pre-
sumption that counsel’s conduct falls within
the wide range of reasonable professional as-
sistance.” Id. In applying Washington, “we
will not find ineffective assistance of counsel
merely because we disagree with counsel’s tri-
al strategy.” Crane v. Johnson, 178 F.3d 309,
312 (5th Cir. 1999).
Even if counsel is proven deficient, a
Washington claim cannot be sustained without
strong proof of prejudice. To prove such pre-
judice, Johnson must show “a reasonable prob-
ability that the result of the proceedings would
have been different but for counsel’s
unprofessional errors.” Crane, 178 F.3d at
312 (citing Washington, 466 U.S. at 694).
“[T]he mere possibility of a different outcome
is not sufficient to prevail on the prejudice
prong.” Id.5 “Rather, the defendant must
demonstrate that the prejudice rendered
sentencing ‘fundament ally unfair or
unreliable.’” Id. (quoting Lockhart v.
Fretwell, 506 U.S. 364, 369 (1993)).
We agree with the district court that in light
of the overwhelming evidence against Johnson
and his extensive prior criminal record, of
which the jury was made aware,6 there was no
prejudice, even if we assume, arguendo, that
counsel was ineffective. Given the seriousness
of his crime and his record, it is highly likely
that Johnson would have been sentenced to
death even in the absence of Rains’s testimony.
Although Johnson describes Rains’s
testimony as a “request for the death penalty,”
in fact Rains asked only that his son’s killer be
“taken care of,” which suggests that he might
have been satisfied with the lesser punishment
of life imprisonment. At the very least, this
highly equivocal statement and the rest of
Rains’s testimony certainly fell far short of
prejudicing the defendant’s case to such an
extent that it “rendered sentencing
fundamentally unfair or unreliable.” Id.
(citations omitted).
D.
Because we follow the district court in
holding that there was no prejudice, we need
not decide whether Johnson’s attorney
performed so poorly as to overcome “the
strong presumption that counsel’s conduct
falls within the wide range of reasonable pro-
fessional assistance.” Washington, 466 U.S. at
689. It seems probable, however, that “under
the circumstances, the challenged action might
be considered sound trial strategy.” Id.
Given the egregious nature of Johnson’s of-
fense and his criminal history, defense counsel
legitimately might have concluded that Rains’s
5 See also Washington, 466 U.S. at 693 (noting
that “[i]t is not enough for the defendant to show
that the errors had some conceivable effect on the
outcome of the proceeding”).
6 Johnson had multiple felony convictions, in-
cluding for aggravated robbery and burglary.

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testimony was unlikely to increase significantly
his client’s already high chance of receiving the
death penalty. The possibility of eliciting a
statement from the victim’s father opposing
imposition of the death penalty therefore might
have justified the attendant risks of calling
Rains to the stand. In retrospect, this strategy
seems to have failed; but in a Washington
analysis, “every effort [must] be made to elim-
inate the distorting effects of hindsight.” Id.
at 689.
E.
Johnson contends that the district court
erred by allegedly failing to take account of the
trial evidence in its evaluation of his claim of
ineffective assistance. Johnson asserts that the
evidence against him was sufficiently weak
that, absent counsel’s ineffective performance
in the penalty phase, the jury’s “residual
doubt” regarding guilt or innocence would
have led it to forego the death penalty. Moore
v. Johnson, 194 F.3d 586, 619 (5th Cir. 1999).
According to Johnson, the court erred in sup-
posedly failing to consider both the guilt and
punishment phases of the trial in determining
“whether there is a reasonable probability that,
but for counsel’s deficient performance, the
jury might have answered the special issues
put before it differently.” Id.
“Residual doubt” left over from the guilt
phase of a capital murder trial can have a sub-
stantial impact on whether that same jury im-
poses a death sentence during the punishment
phase. Lockhart v. McCree, 476 U.S. 162,
181 (1986). The district court did indeed con-
sider the full record, however. See Johnson v.
Cockrell, No. SA-98-CA-133-EP, at 46-47
(W.D. Tex. Nov. 15, 2001) (holding that
“[h]aving reviewed the entire trial record
carefully, this Court concludes that there is no
reasonable probability that but for the
petitioner’s trial counsel calling the victim’s
father to the stand . . . the jury would have
rendered a different verdict on either of the
special issues before it”) (emphasis added).
In view of the overwhelming nature of the
evidence against Johnson SSwho was
videotaped in the act of committing the crime
and then was identified by three witnesses as
the man in the videotapeSSthere is no
reasonable chance that the jury retained
enough “residual doubt” concerning guilt that
it might have decided to forego the death
penalty but for defense counsel’s alleged errors
in his questioning of Rains. Certainly, there is
no reason to believe that any potential
prejudice in this regard was serious enough to
“render . . . sentencing fundamentally unfair or
unreliable.” Crane, 178 F.3d at 312.
The application for COA is DENIED.

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