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Johnson v. White

United States District Court, E.D. Kentucky, Southern Division, Pikeville

March 20, 2017

DONALD HERB JOHNSON, Petitioner,
v.
RANDY WHITE, WARDEN, Respondent.

          OPINION & ORDER

          KAREN K. CALDWELL, CHIEF JUDGE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY

         Donald Herb Johnson is an inmate who has been sentenced to death. He filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (DE 1). In his habeas petition Johnson raises eight claims for relief. Here, Johnson seeks to supplement the record on at least four of those claims through additional discovery and an evidentiary hearing. (DE 32). Because Cullen v. Pinholster, 563 U.S. 170 (2011), applies to Johnson's motion for discovery and an evidentiary hearing, the Court will deny his motion without prejudice at this time and, instead, will consider the motion concurrently with Johnson's habeas petition.

         I.

         On November 29, 1989, sixty-one year old Helen Madden was beaten, stabbed, mutilated, and tortured to death in the supply storage room of the laundromat where she worked. Petitioner Johnson was subsequently arrested for the crimes. Johnson entered a guilty plea to murder, first-degree robbery, first-degree burglary, and two counts of first-degree sexual abuse. He was sentenced to death on the murder conviction by Floyd County Circuit Court Judge David Caudill.

         Johnson appealed his conviction and sentence to the Kentucky Supreme Court. The Kentucky Supreme Court reversed and remanded to the trial court for it to determine whether a retrospective competency hearing was permissible, and if so, to determine whether Johnson was competent to plead guilty. Johnson v. Commonwealth, 910 S.W.2d 229 (Ky. 1995). The trial court conducted a retrospective competency hearing and found that Johnson was competent to plead guilty. The Kentucky Supreme Court upheld that finding, as well as Johnson's conviction and sentence. Johnson v. Commonwealth, 103 S.W.3d 687 (Ky. 2003). Johnson's conviction and sentence became final when the United States Supreme Court denied certiorari. Johnson v. Kentucky, 540 U.S. 986 (2003).

         Johnson filed a post-conviction motion in state court seeking relief pursuant to Kentucky Rule of Criminal Procedure 11.42. Johnson sought an evidentiary hearing on the voluntariness of Johnson's guilty plea, but the trial court denied the petition without holding such a hearing. On appeal, the Kentucky Supreme Court reversed the decision not to hold an evidentiary hearing and remanded with instructions for conducting a hearing regarding the voluntariness of Johnson's plea. Johnson v. Commonwealth, No. 2006-SC-548-MR, 2008 WL 4270731 (Ky. Sept. 18, 2008). The trial court conducted the hearing and found that Johnson entered his guilty plea voluntarily. The Kentucky Supreme Court affirmed that decision. Johnson v. Commonwealth, 412 S.W.3d 157 (Ky. 2013). Johnson's petition for rehearing was then denied.

         II.

         As part of his effort to obtain post-conviction relief in federal court, Johnson asks this Court to permit discovery and to conduct an evidentiary hearing on the following claims asserted in his habeas petition:

         Claims 2, 6, 8: Ineffective Assistance of Counsel:

          The first category of relief sought by Johnson relates to his claims of ineffective assistance of counsel. Johnson claims that he was denied effective assistance of counsel (2) in the investigation, preparation, and presentation of evidence impacting the penalty phase of trial, (6) when trial counsel failed to work with experts and when his counsel cut short pre-trial investigation toward establishing Johnson's competency and insanity defense, and (8) when trial counsel failed to move to withdraw Johnson's guilty plea, which was predicated on Johnson's belief that the trial judge would not sentence him to death.

         To support these claims, Johnson seeks to depose Dana Bias, who represented Johnson in the penalty phase, Mike Williams, who represented Johnson when he entered his guilty plea, and Kelly Gleason, who also represented Johnson when he entered his guilty plea.[1] Johnson also asks the Court to hold an evidentiary hearing to prove his ineffective assistance claims. Specifically, the purpose of deposing counsel and holding an evidentiary hearing would be “to determine the extent of counsel's investigation and preparation for the mitigation phase of trial, ” (DE 32, at 6), “to determine whether [counsel's] actions or inactions including investigations were part of their trial strategy, ” (DE 32, at 7), and “to determine the extent of counsel's investigation and preparation toward determining Johnson's competency to stand trial and the investigation and preparation of an insanity defense.” (DE 32, at 8).

         Johnson asserts that the Kentucky courts did not permit him to hold evidentiary hearing on his ineffective assistance of counsel claims despite his requests for one (DE 32, at 8, 10). He further asserts that none of the Kentucky courts held evidentiary hearings related to these claims, so he now requests that depositions and an evidentiary hearing be conducted to allow him to supplement his claims for relief.

         Claim 3: Don Johnson was denied due process of law when the trial judge accepted a guilty plea which was not entered knowingly, voluntarily and intelligently.

          Second, Johnson alleges that his guilty plea did not comport with the requirements of due process in violation of the Fifth, Sixth, and Fourteenth Amendments of the United States Constitution. Specifically, Johnson argues that the Kentucky Supreme Court erroneously presumed from a silent record that Johnson waived his constitutional right to be free from self-incrimination when he entered a guilty plea, which he argues is in violation of Boykin v. Alabama, 395 U.S. 238 (1969). He seeks relief on the face of the record, but requests that the Court hold an evidentiary hearing and that ...


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