Leroy Johnson, Jr v. Julius C. Wilson, Memorandum

* The Honorable Richard Mills, United States District Judge for the Central
District of Illinois, sitting by designation.
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[NOT RECOMMENDED FOR FULL-TEXT PUBLICATION]
File Name: 06a0407n.06
Filed: June 16, 2006
No. 04-3830
IN THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
LEROY JOHNSON, JR., )
)
Petitioner-Appellant, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE NORTHERN
) DISTRICT OF OHIO
JULIUS C. WILSON, )
) MEMORANDUM
) OPINION
)
Respondent-Appellee. )
_________________________________ )
Before: COLE and KEITH , Circuit Judges; MILLS, District Judge. *
RICHARD MILLS, District Judge.
I. BACKGROUND
Petitioner-Appellant Leroy Johnson, Jr. (“Johnson”) has an IQ of 74, which
means he has a borderline mental impairment. On November 22, 1996, he had an
argument with Martha Johnson (“Martha”), his former live-in girlfriend. Martha

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was staying with her aunt, Lillie Mae Swain (“Ms. Swain”), in Youngstown, OH at
the time.
On the day of the argument, Johnson made several trips to the Swain
residence. He threatened Martha and dropped off her clothing, after he cut it up.
Shortly before 11:00 p.m., Johnson broke into the Swain residence. Martha heard
Johnson break into the house and listened as he called for her. Johnson went
upstairs to look for Martha and Martha hid under the bed.
While in the house, Johnson confronted Ms. Swain and her companion,
Wade Harvin (“Mr. Harvin”). Johnson demanded to know where Martha and then
proceeded to fatally shoot Ms. Swain and Mr. Harvin to death. Police arrested
Johnson the next day after pursuing him. The police questioned Johnson, and
Johnson confessed.
The Mahoning County Grand Jury indicted Johnson on: (1) two counts of
aggravated murder, pursuant to O.R.C. § 2903.01 with death penalty specifications
and a firearm specification; (2) one count of aggravated burglary pursuant to
O.R.C. § 2911.11(A)(1)(B), with a firearm specification; and (3) one count of
failing to comply with an order or signal of a police officer. Johnson initially pled
not guilty to the charges and filed two motions to suppress. The state trial court
denied Johnson’s motions on January 7, 1999.

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Johnson waived his right to a jury trial and was tried by a three-member
panel of judges. Johnson and the prosecution agreed on a joint-stipulation of facts,
which stated that he committed the murders. In exchange, the prosecution agreed
to dismiss the failure to comply charge, forgo the death penalty, recommend life
without parole on the murder charges, recommend a ten year sentence on the
aggravated burglary charge, and recommend a three year sentence for the firearm
specification. The trial court dismissed the failure to comply charge and found
Johnson guilty of the remaining counts on January 29, 1999. On February 9, 1999,
the court sentenced Johnson to two consecutive life terms without the possibility of
parole for the murder charges, ten years for the aggravated battery charge, and
three years for the firearm specification.
Through counsel, Johnson timely appealed the trial court’s decision to the
Ohio Court of Appeals. The court rejected Johnson’s appeal on November 6,
2001. Johnson moved to file a delayed appeal, but the Ohio Supreme Court denied
his motion on September 4, 2002.
While Johnson’s direct appeal was pending, on June 12, 2000, he filed a pro
se petition for post-conviction relief. In the petition, Johnson alleged that his Sixth
and Fourteenth Amendment rights to a fair trial were violated, his Fifth
Amendment rights were violated because police denied him access to counsel

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during questioning, and his Sixth Amendment right to counsel was violated
because his attorney was ineffective. The trial court denied Johnson’s post-
conviction petition on June 10, 2000. Johnson did not appeal the trial court’s
decision. However, on October 31, 2002, he moved the trial court to rule on his
request for post-conviction relief. The trial court denied Johnson’s motion on
November 13, 2002. Johnson also filed a “Motion for the Facts and Findings
Discloser,” which was denied on December 13, 2002.
On November 26, 2002, Johnson moved to reopen his appeal pursuant to
Rule 26(B) of the Ohio Rules of Appellate Procedures. The motion asserted that
the trial court erred by not suppressing his confession. Johnson’s attempt to reopen
the case was denied on February 13, 2003. Johnson did not appeal the denial to the
Ohio Supreme Court.
On June 26, 2003, Johnson filed a habeas petition pursuant to 28 U.S.C. §
2254. He alleged that: (1) his Fifth Amendment rights were violated when police
coerced his statement and prevented him from calling his attorney; (2) his appellate
counsel was ineffective; (3) his Fifth and Fourteenth Amendment rights were
violated when police compelled him to make a statement; and (4) the trial court
errantly allowed his involuntary statement to be admitted. The district court
referred Johnson’s case to United States Magistrate Judge George J. Limbert.

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Magistrate Judge Limbert issued a Report and Recommendation (“R&R”) finding
that Johnson had procedurally defaulted on his claims by failing to raise them on
direct appeal. Johnson contended that the procedural default should be excused
because of his borderline IQ of 74. The R&R rejected this argument and Johnson
did not object. United States District Judge John R. Adams adopted the R&R on
June 14, 2004, denying Johnson’s habeas petition in its entirety. Johnson timely
appealed to this Court on June 21, 2004.
II. JURISDICTION
This Court has jurisdiction over Johnson’s appeal pursuant to 28 U.S.C. §
2253.
III. ANALYSIS
A. Standard of Review
When reviewing the denial of a § 2254 habeas petition, this Court reviews a
district court’s legal conclusions de novo and its factual findings for clear error.
Hill v. Hofbauer, 337 F.3d 706, 710 (6th Cir. 2003). Whether there is cause to
excuse procedural default is a question of law. Burroughs v. Makowski, 411 F.3d
665, 667 (6th Cir. 2005).
B. Procedural Default
“A petitioner procedurally defaults claims for habeas relief if the petitioner
has not presented those claims to the state courts in accordance with the state’s

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procedural rules.” Simpson v. Jones, 238 F.3d 399, 406 (6th Cir. 2000). This
Circuit applies the test enunciated in Maupin v. Smith , 785 F.3d, 135, 138 (6th
Cir. 1986) to determine whether a claim is procedurally defaulted. Under the
Maupin test, the Court considers: (1) whether there is a procedural rule that the
petitioner failed to follow; (2) whether the state courts actually enforced the rule;
(3) whether the procedural default is an “adequate and independent” ground on
which the state can rely to foreclose review of a federal constitutional claim; and
(4) whether the petitioner has shown “cause” for his failure to follow the rule and
“prejudice” resulting therefrom. Id. Even where a petitioner fails to show cause
and prejudice, “a court may notice an otherwise defaulted claim if it concludes that
petitioner has shown by clear and convincing evidence that but for constitutional
error no reasonable juror would have found him guilty of the crime . . . .” Greer v.
Mitchell, 264 F.3d 663, 673 (6th Cir.2001).
In Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639 (1986), the Supreme
Court defined cause sufficient to excuse procedural default as “some objective
factor external to the defense,” which precludes petitioner’s ability to pursue his
claim in state court. The Murray court concluded that an attorney’s failure to
preserve a claim before the state court did not constitute cause for excusing
procedural default. Id. at 486. This Court echoed Murray in Bonilla v. Hurley,

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370 F.3d 494, 498 (6th Cir. 2004). In Bonilla, the Court held that a petitioner
failed to establish cause for his procedural default despite alleging a sudden
departure of his attorney, ignorance with regarding legal and procedural
requirements, pro se status, and limited access to the prison’s law library. Id. at
498.
With the exception of Johnson’s borderline IQ, this case is indistinguishable
from Bonilla. While this Circuit has never decided whether a borderline mental
impairment can establish cause, the Third, Seventh, Eighth, and Ninth Circuits
have all squarely addressed the issue of mental impairment. Each of these Circuits
has held that a borderline mental impairment is not a factor external to a defense
and, therefore, is not cause for excusing procedural default. See Hull v. Freeman,
991 F.2d 86 (3d Cir. 1993) (petitioner’s borderline mental retardation did not
establish cause because it was not “external” to his defense); Harris v. McAdory,
334 F.3d 665, 669 (7th Cir. 2003) (borderline IQ of 76 did not establish cause
because it was not a factor “external” to the defense); Cornman v. Armontrout, 959
F.2d 727, 729 (8th Cir. 1992) (finding petitioner’s below-average intelligence
insufficient to establish cause); Tacho v. Martinez, 862 F.2d 1376, 1381 (9th Cir.
1988) (petitioner’s diagnosis as a “borderline mental defective” was insufficient to
establish cause). These holdings are persuasive. Thus, we hold that a borderline

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mental impairment is not cause for excusing procedural default.
IV. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s decision.

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