Opinion
18-15681
10-13-2022
DOSHMEN JOHNSON, Petitioner-Appellant, v. DAVID BAUGHMAN, Warden, Respondent-Appellee.
NOT FOR PUBLICATION
Argued and Submitted September 22, 2022 San Francisco, California
Appeal from the United States District Court for the Eastern District of California D.C. No. 2:16-cv-01362-JKS James K. Singleton, Senior District Judge, Presiding
Before: GRABER, FRIEDLAND, and MILLER, Circuit Judges.
MEMORANDUM [*]
Doshmen Johnson appeals from the denial of his petition for a writ of habeas corpus. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253, and we affirm.
In 2009, Johnson was convicted of murder in California state court. After pursuing a direct appeal, Johnson unsuccessfully sought state habeas relief, claiming that trial counsel was ineffective in failing to present ostensibly exculpatory cell phone records. The records showed that, at 1:01 a.m. and 1:13 a.m. on the night of the murder, a cell phone that Johnson claims to be his connected to cell towers located 10 to 15 miles from the scene of the murder. Johnson argued that the records proved that he could not have been at the scene of the murder when it took place because the 911 call reporting the fatal shooting was made at 1:15 a.m.
We review de novo a district court's denial of a habeas petition. Sanders v. Cullen, 873 F.3d 778, 793 (9th Cir. 2017). Under the Antiterrorism and Effective Death Penalty Act (AEDPA), a federal habeas petitioner must show that the state court's adjudication of the merits of the claim "was 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), or was "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding," id. § 2254(d)(2). If the petitioner meets that burden, then we "review the substantive constitutionality of the state custody de novo." Frantz v. Hazey, 533 F.3d 724, 737 (9th Cir. 2008) (en banc).
1. The state court's adjudication of Johnson's habeas claim was not unreasonable under AEDPA. Because the California Supreme Court summarily denied Johnson's habeas petition, we look "to the last . . . state-court decision that . . . provide[s] a relevant rationale" and "presume that the unexplained decision adopted the same reasoning." Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018); see Montiel v. Chappell, 43 F.4th 942, 958 (9th Cir. 2022); Cannedy v. Adams, 706 F.3d 1148, 1156 (9th Cir. 2013), as amended on denial of reh'g, 733 F.3d 794. The last state-court decision to provide a rationale for rejecting Johnson's claim was the decision of the California Superior Court. That court identified two reasons to doubt the cell phone evidence: (1) that Johnson presented only inadmissible hearsay to show that the phone was his, and (2) that the time of the shooting was uncertain, and "[i]f the shooting had actually taken place several minutes earlier" than 1:15 a.m., then "it might have been possible for the holder of the phone" to have been at the scene of the shooting and then to have driven to the area of the cell towers to which the phone connected.
We assume, without deciding, that the California Supreme Court's adoption of the first rationale represented an unreasonable determination of the facts. As part of his petition before that court, Johnson submitted non-hearsay declarations to establish his possession of the phone. But as to the second rationale, Johnson has not met AEDPA's demanding standard of showing that "the state court's decision was 'not merely wrong, but actually unreasonable.'" Sifuentes v. Brazelton, 825 F.3d 506, 518 (9th Cir. 2016) (quoting Taylor v. Maddox, 366 F.3d 992, 999 (9th Cir. 2004), overruled on other grounds by Murray v. Schriro, 745 F.3d 984, 999- 1000 (9th Cir. 2014)). Although the 911 call was placed at 1:15 a.m., other evidence suggests that the shooting may have taken place earlier. If so, then even if the phone had been in Johnson's possession, the location information would not rule out his presence at the scene of the murder. It therefore was not unreasonable for the Superior Court to reject Johnson's claim.
2. Even assuming that the state court's denial of Johnson's habeas petition was unreasonable under AEDPA, Johnson's counsel met the minimum constitutional requirements for effectiveness. In other words, Johnson's claim would still fail under de novo review.
"[S]trategic decisions [of counsel] . . . are entitled to a 'strong presumption' of reasonableness." Dunn v. Reeves, 141 S.Ct. 2405, 2410 (2021) (per curiam) (quoting Harrington v. Richter, 562 U.S. 86, 104 (2011)). Only where "counsel took an approach that no competent lawyer would have chosen" will we conclude that there was ineffective assistance. Id. And where, as here, "counsel focuses on some issues to the exclusion of others, there is a strong presumption that he did so for tactical reasons rather than through sheer neglect." Yarborough v. Gentry, 540 U.S. 1, 8 (2003) (per curiam). Johnson has not overcome that presumption.
The prosecution's case relied on the testimony of a single eyewitness, Franki Jones. Johnson's counsel extensively cross-examined Jones, pointing out that she had worked as a prostitute for a gang that was a rival of Johnson's gang, that she had made prior statements that were inconsistent with her testimony, and that she had failed to identify Johnson the first time she was presented with a photographic lineup of potential suspects. Counsel explained that he considered presenting the cell phone evidence but that, "after mulling it over and mulling it over," he concluded that it "was a better tactic" to focus on attacking the credibility of the "one eyewitness that has demonstrated herself not to be believable on a variety of fronts and even admitted so during the trial." As counsel observed, "there were certain phone calls made at or near the time of the murder that Mr. Johnson could not explain," and even if Johnson did not testify, the prosecution could have introduced those calls by presenting testimony from the other parties to them. For that reason-and because of the uncertainty in the time of the shooting-the cell phone evidence would not clearly have established Johnson's innocence. In fact, that evidence might have undermined Johnson's case.
Counsel elaborated that he "made a tactical decision after discussing it at length with Mr. Johnson that [the phone evidence] would do more harm than good." As counsel explained, Johnson had had a jailhouse conversation with his girlfriend in which they discussed an alibi-Johnson's attendance at a party that took place at the same time as the murder-that was inconsistent with the location information in the cell phone records. The prosecution knew about that conversation but had not introduced it in its case in chief. Had counsel presented the cell phone evidence, the conversation would have taken on new significance as not simply a discussion of a potential alibi, but as an effort to concoct a false alibi. It could have been used to rebut the cell phone evidence and also as affirmative evidence of Johnson's guilt. See People v. Vu, 49 Cal.Rptr.3d 765, 780-81 (Ct. App. 2006) ("Evidence the defendant used a false alibi is relevant to prove consciousness of guilt."). Choosing not to present the cell phone evidence was thus a coherent tactical choice based on professional judgment, a choice that was "within the wide range of reasonable professional assistance." Burt v. Titlow, 571 U.S. 12, 23 (2013) (quoting Strickland v. Washington, 466 U.S. 668, 689 (1984)).
AFFIRMED.
Friedland, J., dissenting:
I disagree that the California Superior Court's decision is entitled to AEDPA deference, and, applying de novo review, I conclude that Johnson has demonstrated that he received ineffective assistance of counsel. It seems very possible that counsel's errors led Johnson to be convicted of a shooting he did not commit. I therefore respectfully dissent.
To determine whether AEDPA deference applies, we must ask "whether, in light of the evidence before the California Supreme Court-the last state court to review the claim-it would have been reasonable to reject Petitioner's allegation [for] ... the reasons expressed by the [Superior Court]." Cannedy v. Adams, 706 F.3d 1148, 1159 (9th Cir. 2013). The superior court offered two grounds for its holding that counsel's decision not to offer the cell phone evidence reflected a competent defense strategy. Both were unreasonable. First, Johnson submitted additional admissible evidence to the California Supreme Court to establish his possession of the phone in the form of declarations from individuals who testified that they regularly contacted Johnson at the phone number in question. This obviates the superior court's concern about reliance on hearsay. Second, the record belies the superior court's suggestion that Johnson could have "doubled back" to be at the scene of the shooting and also at the locations recorded by the cell phone towers. Two callers independently called the police at 1:15 am to report the shooting, one of whom described the crime as "in progress." None of the speculative testimony that the prosecution offered to suggest that the precise time of the shooting was unknown undermined the police call log evidence showing that the shooting happened roughly at 1:15 am. It was therefore unreasonable for the superior court to determine that the cell phone holder could have committed the murder between two calls made twelve minutes apart when the cell phone was 10-15 miles away. This would have required Johnson to travel at an average speed over 100 mph, which is implausible. AEDPA deference is thus unwarranted.
Based on estimations from the cell tower analysis submitted, the cell phone tower pinged no closer than ten miles south of the crime scene at 1:01 a.m. The evidence suggests it was at least eleven miles south of the crime scene at the next ping, 1:13 a.m. At 1:17 a.m., it was even further south of the crime scene. At a minimum, the cell phone holder would have had to travel 21 miles in a twelve-minute interval to get from the 1:01 location to the murder scene and then back even further south to the 1:13 location. This is assuming the murder happened earlier than it likely did, as "doubling back" in the four-minute interval is even less plausible.
Under de novo review, I would grant Johnson habeas relief because defense counsel's failure to introduce the cell phone records was deficient performance and likely impacted the jury verdict. Despite the presumption of reasonableness for strategic decisions, strategies premised on mistaken understandings of the law or facts are not entitled to deference. See, e.g., Hinton v. Alabama, 571 U.S. 263, 274 (2014). Even though defense counsel's choice to rely solely on attacking the credibility of one witness may have been an intentional strategy, the presumption of reasonableness is rebutted because the cell phone records provide compelling evidence of innocence, and counsel's justifications for not introducing them rest on misapprehensions of the law and facts.
The cell phone records are persuasive evidence of Johnson's innocence because they (1) put the phone too far away from the site of the crime for its holder to be the perpetrator, and (2) establish that Johnson had the phone on the night in question. If defense counsel had introduced the records, the State would have had to explain why Johnson gave his phone to someone else and why that person repeatedly called and received calls from Johnson's brother (who was a member of a rival gang to Johnson's), sister, friend, and two girlfriends on the night of the murder-a seemingly impossible task.
Several of Johnson's friends and family members were available to testify that the number associated with the phone was Johnson's number (i.e., they regularly contacted him at that phone's number and he used that number to contact them). The night of the murder, the records reveal that the phone called many of these contacts multiple times.
Out of the dozens of calls made between 12 and 3 a.m. the night of the murder, there were only a few, at most, that could not be explained based on the declarations of Johnson's friends and relatives in the record. Even if it is true that, as defense counsel noted, "there were certain phone calls made at or near the time of the murder that Mr. Johnson could not explain," any efforts to undermine this evidence could not have vitiated the significant doubt as to Johnson's guilt raised by the cell phone records as a whole.
The recorded jail conversation would not have made this task easier for the State. The most likely theory as to why Johnson might have given his phone to someone else would be that he wanted to create an alibi by creating cell tower evidence placing his phone far from the scene of the murder. But if Johnson had done that, he presumably would not have later discussed creating the false party alibi, because he would already have had an alibi placing him in a location away from the murder (and away from the party). In any event, with such a strong cell phone alibi, the conversation about the false party alibi would not be damaging. Guilty or not, Johnson would have wanted proof that he was elsewhere; he likely discussed the potential false alibi because he could not precisely remember his various whereabouts around Sacramento that night-and did not know that cell location data reliably tracked him and would give him a way to prove his whereabouts.
The recorded conversation, then, could only be damaging to Johnson in that it might suggest he is dishonest. But dishonesty is not probative of guilt in a homicide case, especially where the defendant did not testify. Perhaps for that reason, the State did not introduce evidence of the false party alibi to make Johnson look guilty, even though it could have done so regardless of the strategy chosen by defense counsel.
Defense counsel's explanation that he did not introduce the records because the recorded jail conversation presented a "serious proof problem" thus demonstrates a fundamental misunderstanding of the burden of proof in a criminal trial. Even if some aspects of Johnson's whereabouts or phone calls remained unexplained, and even if the false alibi conversation might have seemed suspicious or suggested Johnson was dishonest, the phone records were at least compelling enough to create reasonable doubt that Johnson committed the murder. The likelihood that the cell phone records would have made a difference is especially high given the paucity of the State's evidence to begin with-which only linked Johnson to the crime through the testimony of a single uncredible eyewitness. This is therefore a rare case in which the standards of Strickland v. Washington, 466 U.S. 668 (1984), are satisfied.
I fear that defense counsel's unreasonable decision not to introduce compelling evidence of innocence caused Johnson to be convicted of a murder he did not commit. I respectfully dissent from the denial of habeas.
[*] This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.