REVISED JUNE 9, 1999 IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 97-60687 _____________________
SAMUEL RICE JOHNSON,
Petitioner-Appellant,
v.
STEVE PUCKETT, Commissioner; JAMES V ANDERSON, SUPERINTENDENT, MISSISSIPPI STATE PENITENTIARY; STATE OF MISSISSIPPI,
Respondents-Appellees.
_________________________________________________________________
Appeal from the United States District Court for the Southern District of Mississippi _________________________________________________________________ May 20, 1999 Before KING, Chief Judge, and POLITZ and BENAVIDES, Circuit Judges.
KING, Chief Judge:
Samuel Johnson appeals the district court’s denial of his
habeas corpus application. Johnson challenges his continued
confinement on several grounds, but his chief complaint is that
the state failed to disclose exculpatory material and suborned
perjury in violation of Brady v. Maryland, 373 U.S. 83 (1963),
and Giglio v. United States, 405 U.S. 150 (1972). Because we
conclude the district court correctly denied relief on this and
all of Johnson’s other assignments of error, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND On December 31, 1981, Mississippi Highway Patrol Officer
Billy Langham stopped a car driven by Samuel Johnson containing
three passengers (Anthony Fields, Otis Fairley, and Charles
Montgomery, Jr.) as it traveled north on Highway 49 approaching
Collins, Mississippi. Langham asked to see Johnson’s license,
and Johnson informed the officer that he did not have one.
Langham asked the occupants of the car to exit the vehicle, and
they complied with his request.
As the magistrate judge noted in his report in which he
recommended that the district court deny Johnson habeas relief,
“[t]here is a great deal of conflicting testimony as to what
transpired next and as to ‘who did what.’” Ultimately, Officer
Langham was killed after being stabbed with a butcher knife in
the back between his shoulder blades and being shot at close
range with his own revolver. Johnson, Fairley, and Montgomery
were indicted for capital murder. Fairley and Montgomery were
convicted and each given a life sentence. Fields, in contrast,
pleaded guilty to accessory after the fact and was sentenced to a
five-year term of imprisonment.
Both Fairley and Fields testified at Johnson’s trial.
Johnson called Fairley as his primary witness, and Fairley
testified that Fields stabbed and shot Langham. Fields was
called as a witness by the state and testified that Langham was
stabbed by Johnson and shot by Montgomery. Johnson did not
testify in his own defense.
2 On September 3, 1982, Johnson was convicted of Officer
Langham’s murder and sentenced to death. On direct appeal, the
Supreme Court of Mississippi affirmed his conviction and
sentence. See Johnson v. State, 477 So. 2d 196 (Miss. 1985). On
May 6, 1986, the United States Supreme Court denied Johnson’s
petition for writ of certiorari. See Johnson v. Mississippi, 476
U.S. 1109 (1986).
Johnson then filed a motion for post-conviction relief in
Mississippi state court. In that motion, Johnson argued, inter
alia, that post-conviction relief was justified based on the fact
that a 1963 felony assault conviction in New York, which was one
of three aggravating circumstances that elevated Johnson’s crime
from murder to capital murder, had been set aside by the New York
courts. See People v. Johnson, 506 N.E.2d 1177 (N.Y. 1987). The
Mississippi Supreme Court, by a vote of 6-3, denied Johnson’s
application for post-conviction relief. See Johnson v. State,
511 So. 2d 1333 (Miss. 1987).
Johnson then filed a petition for writ of certiorari with
the United States Supreme Court, which the Court granted on
January 11, 1988. See Johnson v. Mississippi, 484 U.S. 1003
(1988). The Supreme Court vacated Johnson’s death sentence,
ruling that, in the context of the Mississippi sentencing scheme,
the Eighth Amendment requires re-examination of a death sentence
based in part on a prior felony conviction which was set aside in
the rendering state after the capital sentence was imposed.
3 See Johnson v. Mississippi, 486 U.S. 578, 584-90 (1988). On
remand, the Mississippi Supreme Court reconsidered Johnson’s
motion for post-conviction relief and remanded to the trial court
for re-sentencing. See Johnson v. State, 547 So. 2d 59 (Miss.
1989) (en banc). The trial court subsequently re-sentenced
Johnson to life in prison.
On June 6, 1994, Johnson filed a second motion for post-
conviction relief with the Mississippi Supreme Court, in which he
alleged that his conviction was flawed because it was based on
the perjured testimony of a co-indictee, Fields, and because the
prosecution failed to disclose certain evidence to which Johnson
claimed he did not have access until his re-sentencing hearing.
The Mississippi Supreme Court denied relief, finding that his
petition was barred: (1) by the applicable three-year statute of
limitations, (2) as a second, successive application for post-
conviction relief, and (3) by the doctrine of res judicata.
See Johnson v. State, No. 94-DP-00532-SCT (Miss. June 8, 1995).
On April 23, 1996, Johnson filed an application for writ of
habeas corpus in the United States District Court for the
Southern District of Mississippi. A magistrate judge conducted
an evidentiary hearing on April 22, 1997, limited to the
presentation of proof in support of Johnson’s claim that newly
discovered evidence was not reasonably available to Johnson at
the time of his trial. The magistrate judge issued a report
recommending that Johnson’s habeas application be dismissed with
4 prejudice. The district court adopted the magistrate’s report on
September 25, 1997, denying Johnson relief. The district court
construed Johnson’s timely notice of appeal as a request for a
certificate of probable cause (CPC), and granted Johnson a CPC to
appeal the denial of habeas relief to this court.
II. DISCUSSION
We review the district court’s findings of fact for clear
error and its conclusions of law de novo. See Gochicoa v.
Johnson, 118 F.3d 440, 444 (5th Cir. 1997), cert. denied, 118 S.
Ct. 1063 (1998); Spence v. Johnson, 80 F.3d 989, 993 (5th Cir.
1996). Because Johnson filed his federal habeas application in
district court prior to April 24, 1996, the date Congress enacted
the Anti-Terrorism and Effective Death Penalty Act of 1996
(AEDPA), we must apply pre-AEDPA deference standards to any state
court determinations. See Gochicoa, 118 F.3d at 444-45. Under
pre-AEDPA law, state court findings of fact are entitled to a
presumption of correctness, see Boyle v. Johnson, 93 F.3d 180,
186 (5th Cir. 1996), and we review state determinations of law
and mixed questions of law and fact de novo, see Gochicoa, 118
F.3d at 444; Amos v. Scott, 61 F.3d 333, 337-38 (5th Cir. 1995).
Johnson raised twenty-eight grounds in his habeas corpus
application in the district court. He briefs six of these issues
on appeal, and we consider the remainder abandoned. See Trevino
v. Johnson, 168 F.3d 173, 181 n.3 (5th Cir. 1999); Yohey v.
Collins, 985 F.2d 222, 225 (5th Cir. 1993). In addition, Johnson
5 argues for the first time on appeal that collateral relief is
warranted on the basis of the cumulative effect of errors
committed by the state trial court. “We have repeatedly held
that a contention not raised by a habeas petitioner in the
district court cannot be considered for the first time on appeal
from that court’s denial of habeas relief.” Johnson v. Puckett,
930 F.2d 445, 448 (5th Cir. 1991). We therefore limit our
attention to the six issues Johnson argued to the district court
and now advances on appeal. We address these issues in turn.
A. Brady/Giglio Claim
Johnson bases his first claim of error on Brady v. Maryland,
373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150
(1972). The district court concluded that this claim was
procedurally barred, a legal conclusion that we review de novo.
See Martin v. Maxey, 98 F.3d 844, 847 (5th Cir. 1996); Amos, 61
F.3d at 338.
Johnson maintains that the state withheld exculpatory
evidence, including details concerning benefits that Fields, the
state’s chief witness, received from the state as a result of
testifying against Johnson.1 Further, Johnson maintains that the
1 According to Johnson, Fields’s cooperation led to him becoming a “key man” in jail, which allowed him “to go home, walk to the bank to do his business, go to the local store to buy food and cigarettes, cook up whatever burgers he might buy, and even get drinks in the jail.” In addition, Johnson contends that the state promised Fields help in obtaining parole. Johnson also claims that the state failed to reveal racial epithets and threats purportedly made to Fields while he was in jail before he
6 state suborned perjury because prosecutors knew or should have
known that Fields lied during his testimony. Specifically, in
his habeas application submitted to the district court, Johnson
identifies several areas of Fields’s testimony in which he argues
that the state knew or should have known that Fields lied:
whether Fields previously had been convicted of a crime; whether
Fields, Johnson, Montgomery, and Fairley had stopped in Purvis,
Texas before they were stopped by Officer Langham; when and where
Fields first saw the knife that was eventually used in stabbing
Officer Langham; whether Johnson was wearing a coat during the
assault of the officer; the number of times Fields spoke to
authorities before testifying in Johnson’s trial; and, most
importantly, who killed Officer Langham.
Johnson presented a similar claim in his first state motion
for collateral relief. In that motion, Johnson argued that the
state failed to disclose Fields’s criminal record and inculpatory
statements made by Fields in violation of Brady, and that the
state failed to correct Fields’s testimony concerning his prior
criminal record that it knew was perjured, necessitating relief
under Giglio. Johnson had not briefed either issue in his direct
appeal before the Mississippi Supreme Court, and neither argument
testified in Johnson’s trial. Johnson argues that these threats provided an incentive for Fields to testify favorably for the state.
7 addressed the alleged deal Fields and prosecutors entered into as
a result of Fields’s testifying against Johnson.
It is clear from the opinion rendered by the Mississippi
Supreme Court denying Johnson’s first motion for post-conviction
relief that that court declined to address the merits of these
claims because it found them to be procedurally barred. See
Johnson, 511 So. 2d at 1335-36, 1342. However, it is more
difficult to discern which bar the court applied in denying
relief. The court states that Johnson waived the Brady claim,
because Johnson “failed to raise [the issue] at trial or on the
direct appeal.” Id. at 1342. However, the court concluded that
the Giglio claim was procedurally barred by the doctrine of res
judicata because it was “considered and addressed by us on the
direct appeal.” Id.
In Johnson’s second motion for post-conviction relief, he
argued that the prosecution’s failure to disclose the details of
the benefits Fields received after testifying for the state
violated Brady, and that “the government knew, or should have
known, that Fields was committing perjury in denying the full
scope of his deal, and in making inconsistent statements at
Petitioner’s trial,” in violation of Giglio.2
2 Johnson did not identify the statements he believed were “inconsistent” other than those related to the purported deal between Fields and the prosecution, and it is therefore impossible to determine the extent of the overlap between Johnson’s argument in his second motion for post-conviction relief and his Giglio argument in his first motion for post-
8 The Mississippi Supreme Court again relied on procedural
bars in denying Johnson’s second motion for post-conviction
relief. The court found that Johnson was barred: first, by the
applicable three-year statute of limitations; second, as a second
and successive application of post-conviction relief; and third,
by the doctrine of res judicata. The court therefore declined to
address these issues on the merits in denying Johnson collateral
relief.
Johnson admits in his brief to this court that he “was
subjected to a procedural bar in state court” on his Brady/Giglio
claim, and, during oral argument, Johnson’s counsel explicitly
asserted that the procedural bars enforced by the Mississippi
Supreme Court in its opinion denying relief on Johnson’s second
motion for post-conviction relief apply to this claim.3
Johnson’s argument on appeal thus is not that the district court
incorrectly concluded that the Mississippi Supreme Court applied
a procedural bar to this claim;4 instead, he argues that the
conviction relief. 3 We note that the Mississippi Supreme Court’s explicit reliance on the three-year time limitation of MISS. CODE ANN. § 99- 39-5(2) in its denial of Johnson’s second collateral motion is an independent and adequate state ground that bars this court from considering the merits of the claim, subject to the normal exceptions to the procedural bar doctrine. See Lott v. Hargett, 80 F.3d 161, 165 (5th Cir. 1996) (stating that Mississippi courts consistently and regularly apply § 99-39-5(2)). 4 Johnson does disagree with the district court’s apparent conclusion that the procedural bars from his first motion for post-conviction relief apply to this claim. This is of no
9 district court erred in concluding that he had failed to show
sufficient cause and prejudice to overcome the procedural bar
applied by the Mississippi Supreme Court.
Federal review of a procedurally defaulted claim is
precluded unless “the prisoner can demonstrate cause for the
default and actual prejudice as a result of the alleged violation
of federal law, or demonstrate that failure to consider the
claims will result in a fundamental miscarriage of justice.”
Coleman v. Thompson, 501 U.S. 722, 750 (1991). To establish
cause for a procedural default, there “must be something external
to the petitioner, something that cannot fairly be attributed to
him.” Id. at 753. Johnson maintains that he has met this
burden; he argues that the evidence adduced at the evidentiary
hearing conducted by the magistrate judge proves that the state
interfered with his access to Fields, the state’s primary
witness, thereby limiting his ability to discover the full
import, as he admits that the Mississippi Supreme Court applied a procedural bar to the issue he raises on appeal. We note that the question of which procedural bar applies is more simple on appeal than it was before the district court; Johnson’s Brady/Giglio argument to the district court was apparently based on more material and testimony than is the subject of this appeal, and at least some of that material and testimony was the subject of Johnson’s first post-conviction relief motion. We are convinced after reading Johnson’s appellate brief and hearing his oral argument to this court that the issue before us, which is primarily based on alleged threats made to Fields and the scope of a purported deal between Fields and the state, was denied as procedurally barred in Johnson’s second motion for collateral relief.
10 ramifications of Fields’s plea bargain with the state and the
extent of his preferential treatment by authorities.
While we agree with Johnson that a showing of “interference
by officials” is sufficient to show cause for a procedural
default, McCleskey v. Zant, 499 U.S. 467, 494 (1991) (internal
quotation marks omitted), we are unpersuaded by Johnson’s
contention that he has made such a showing. In support of his
claim, Johnson argues that he presented unrebutted testimony at
the evidentiary hearing that Fields refused to talk to anyone on
the defense team until October 10, 1991. However, even if this
contention were true, Johnson has not established that the cause
of Fields’s refusal to speak with Johnson’s attorneys was
interference by state law enforcement. Fields may have made a
personal choice to avoid such contact--a choice that is well
within his rights. See United States v. Soape, 169 F.3d 257, 271
n.9 (5th Cir. 1999) (“[A] government witness who does not wish to
speak to or be interviewed by the defense prior to trial may not
be required to do so.") (internal quotation marks omitted);
United States v. Caldwell, 750 F.2d 341, 347 (5th Cir. 1984)
(noting that a defendant’s right to access to a witness “exists
co-equally with the witness’ right to refuse to say anything”)
(internal quotation marks omitted).
Johnson asserts, however, that Fields’s silence was not the
product of Fields’s own volition. Rather, Johnson maintains that
Fields was “discouraged” from speaking with the defense by a
11 local law enforcement officer, who, according to Johnson, told
“defense counsel that Fields could only speak to the defense in
the presence of [then-]District Attorney Bob Evans.” However,
there is no evidence to support this assertion in the record. On
the contrary, during the evidentiary hearing conducted by the
magistrate, Fields testified on direct examination as follows:
Q. Do you recall Sheriff Lloyd Jones telling you that you weren’t allowed to talk to us without [then- District Attorney] Bob Evans being present? Do you recall that? A. No, I don’t.
After Fields denied that Sheriff Jones interfered with
Johnson’s counsel’s access to him, Johnson’s counsel elicited the
following cross-examination testimony from Marvin White, who had
served as special prosecutor during Johnson’s re-sentencing
proceedings:
Q. Do you also recall that prior to the 1992 [re- sentencing] trial we litigated the question of defense access to Anthony Fields? Do you recall that? A. That’s correct. Q. Do you recall that we were being told by Sheriff Lloyd Jones we couldn’t talk to him. Right? A. No, I don’t think so. Q. What do you recall us litigating? A. I think that you asked for access to him and he asked for counsel and we litigated that, and Rex Jones represented him. You wanted access not only to Anthony Fields but also to his counsel, and the court ruled that you could not have -- Anthony Fields could talk to you if he wanted to and that Rex Jones did not have to because he had the right of privilege. Anthony Fields did not have to talk to you if he chose not to and he chose not to. Q. Do you recall us filing a motion saying that on July 15th, 1990, Sheriff Jones told my two investigators they could only talk with Anthony Fields if Bob Evans was present? Do you recall that?
12 A. Yeah, you may have. Q. And the record would best reflect -- A. The record certainly reflects that. Of course, you haven’t made that record part of this proceeding.
Curiously, although Judge Robert Evans, who was the
presiding District Attorney at the time of Johnson’s original
trial, was called by the state to testify at the evidentiary
hearing, Johnson’s counsel chose not to question him regarding
any official interference with Johnson’s access to Fields. Thus,
no evidence presented during the evidentiary hearing, and no
evidence in the entire record before this court, supports
Johnson’s contention that state officials made “compliance with
the procedural rule impracticable.” United States v. Guerra, 94
F.3d 989, 993 (5th Cir. 1996). We therefore have no trouble
concluding that the district court properly found that Johnson
failed in his burden to establish cause for his procedural
default, and we need not consider whether there is actual
prejudice. See Saahir v. Collins, 956 F.2d 115, 118 (5th Cir.
1992).5
B. Accessory-After-the-Fact Instruction
Johnson next argues that the trial court’s refusal to
instruct the jury on the crime of accessory after the fact
violated his constitutional rights. Johnson contends that the
5 In his brief, Johnson does not discuss nor oppose the district court’s well-reasoned finding that failure to consider this claim will not result in a fundamental miscarriage of justice.
13 court’s ruling prevented him from presenting his theory of the
case to the jury, namely, that he did not commit the murder of
Officer Langham, and that his only offense was driving the get-
away car after the killing.
The Mississippi Supreme Court rejected this claim in
Johnson’s direct appeal. Relying on Wilcher v. State, 455 So. 2d
727 (Miss. 1984) (en banc), vacated in part on other grounds, 635
So. 2d 789 (Miss. 1993), in which the court held that accessory
after the fact is not a lesser included offense of capital
murder, the court ruled that a defendant is not entitled “to have
the jury separately instructed and separately . . . consider
whether [Johnson] was guilty of being an accessory after the
fact.” Johnson, 477 So. 2d at 214-15. The district court
refused to grant Johnson habeas relief on this issue, ruling that
Johnson was not entitled to an instruction for accessory after
the fact because that offense is not a lesser included offense of
capital murder, and concluding that, in any event, “the evidence
in this case does not support a conviction for accessory-after-
the-fact and, hence, it was certainly not error for the trial
court to refuse such an instruction.”
Johnson makes two interrelated arguments with respect to
this issue. First, Johnson argues that under Beck v. Alabama,
447 U.S. 625 (1980), the trial court was constitutionally
required to give the requested instruction. Johnson’s reliance
on Beck is misplaced. In that case, the Supreme Court concluded
14 that Alabama’s “all-or-nothing” death penalty statute, which
forbade trial courts from issuing lesser-included-offense
instructions in capital cases, was constitutionally deficient.
See id. at 627. As the Supreme Court explained in Schad v.
Arizona, 501 U.S. 624, 646 (1991), the
fundamental concern in Beck was that a jury convinced that the defendant had committed some violent crime but not convinced that he was guilty of a capital crime might nonetheless vote for a capital conviction if the only alternative was to set the defendant free with no punishment at all.
Thus, “Beck addresses only those cases in which the jury is faced
with an ‘all-or-nothing’ decision.” Allridge v. Scott, 41 F.3d
213, 219 (5th Cir. 1994). Here, despite the fact that the trial
judge refused to give an instruction on accessory after the fact,
the jury was not presented with a choice between returning a
guilty verdict on a capital offense or setting Johnson free. The
instruction that the jury in this case received on capital murder
stated:
If you find the State has failed to prove any one of the essential elements of the crime of capital murder, you must find the defendant not guilty of capital murder and you will proceed with your deliberations to decide whether the State has proved beyond a reasonable doubt all the elements of the lesser crime of murder less than capital.
Johnson, 477 So. 2d at 212. The jury instruction then set forth
the elements of the crimes of murder and manslaughter, and
instructed the jury that if it found that Johnson had completed
the requisite acts to be guilty of one of these crimes, but not
15 of capital murder, it was to return a verdict of guilty to one of
the lesser crimes. Thus, the harm identified in Beck, that a
jury might be pressured or coerced into returning a guilty
verdict on a capital crime in order to avoid setting the
defendant free, is not present in this case.6 See Schad, 501
U.S. at 647 (“This central concern of Beck simply is not
implicated in the present case, for petitioner’s jury was not
faced with an all-or-nothing choice between the offense of
conviction (capital murder) and innocence.”); Allridge, 41 F.3d
at 220 (“But if the jury is given a third instruction,
particularly one that is supported by the evidence, then due
process is no longer implicated.”).
Johnson further contends that the distinction between lesser
included offenses of capital murder, such as murder and
manslaughter, and lesser related offenses, such as accessory
after the fact, is “spurious,” and that the trial court was
constitutionally required to instruct the jury on his theory of
the case, that he had committed a lesser related offense, but had
6 Because we decide that Beck does not apply to the factual circumstances of this case, we need not consider the application of our recent conclusion in Creel v. Johnson, 162 F.3d 385, 390- 91 (5th Cir. 1998), petition for cert. filed, (U.S. Mar. 23, 1999) (No. 98-8720), that “a case in which the death penalty is sought but not imposed ultimately is classified as a noncapital case for the purposes of a Beck analysis.” In this case, as we discussed supra, Johnson was originally sentenced to death, but then re-sentenced by a different jury to life in prison after the Supreme Court vacated his sentence.
16 not committed capital murder. We reject Johnson’s suggestion
that any such requirement is mandated by the Constitution.
In Hopkins v. Reeves, 118 S. Ct. 1895, 1897-98 (1998), the
Supreme Court considered “whether Beck requires state trial
courts to instruct juries on offenses that are not lesser
included offenses of the charged crime under State law,” and
concluded that “such instructions are not constitutionally
required.” The Court in that case considered the claims of a
habeas petitioner who had been convicted of felony murder in
Nebraska state court. See id. at 1898. The petitioner claimed
that the trial court’s refusal to issue instructions on murder in
the second degree and manslaughter, which, under Nebraska state
law, were not lesser included offenses of felony murder,
necessitated collateral relief. The situation that the Court
faced in Hopkins was unquestionably more difficult than the
instant case; the jury in Hopkins was given an all-or-nothing
choice between conviction or setting the defendant free, as
Nebraska law recognized no lesser included offenses of felony
murder. Even so, the Court rejected the petitioner’s
constitutional challenge on the merits, stating:
The Court of Appeals [which had granted habeas relief] in this case . . . required in effect that States create lesser included offenses to all capital crimes, by requiring that an instruction be given on some other offense--what could be called a “lesser related offense”--when no lesser included offense exists. Such a requirement is not only unprecedented, but also unworkable. . . . The Court of Appeals apparently would recognize a constitutional right to an instruction on
17 any offense that bears a resemblance to the charged crime and is supported by the evidence. Such an affirmative obligation is unquestionably a greater limitation on a State’s prerogative to structure its criminal law than is Beck’s rule that a State may not erect a capital-specific, artificial barrier to the provision of instructions on offenses that actually are lesser included offenses under state law.
Id. at 1901. Likewise, under Mississippi law, accessory after
the fact is not a lesser included offense of capital murder.
See Wilcher, 455 So. 2d at 734. The trial court’s refusal to
grant an instruction on accessory after the fact was therefore
not a violation of Johnson’s constitutional rights. See Hopkins,
118 S. Ct. at 1901.
It is irrelevant that, subsequent to Johnson’s conviction,
the Mississippi Supreme Court has determined that a defendant has
a right under state law to an instruction on “a lesser crime
which could be found to have been committed on the evidence
before the jury.” Toliver v. State, 600 So. 2d 186, 192 (Miss.
1992) (Banks, J., concurring); see Gangl v. State, 539 So. 2d
132, 135 (Miss. 1989) (en banc) (“The better rule in cases such
as this is that the defendant may request an instruction
regarding any offense carrying a lesser punishment if the lesser
offense arises out of a nucleus of operative fact common with the
factual scenario giving rise to the charge laid out in the
indictment.”). First, the Supreme Court made clear in Hopkins
that any such right does not arise under the federal
Constitution. See 118 S. Ct. at 1901 (stating that “[w]e have
18 never suggested that the Constitution requires anything more”
than an instruction on lesser included offenses in capital
trials); see also Greenawalt v. Ricketts, 943 F.2d 1020, 1029
(9th Cir. 1991) (denying relief on habeas petitioner’s claim
based on trial court’s refusal to grant instruction on lesser
related, but not lesser included, offense). In habeas review, we
limit the issuance of the writ to those cases where there have
been federal constitutional violations. See Castillo v. Johnson,
141 F.3d 218, 223 (5th Cir. 1998); Mayo v. Lynaugh, 882 F.2d 134,
137 (5th Cir. 1989). Second, as our discussion of Beck and
Hopkins makes clear, the rule Johnson advocates was not “dictated
by precedent” in 1986, when Johnson’s conviction became final.
Teague v. Lane, 489 U.S. 288, 301 (1989). We are therefore
prohibited from creating or applying such a rule on habeas review
under the Teague anti-retroactivity doctrine. See id.; Vega v.
Johnson, 149 F.3d 354, 357 (5th Cir. 1998), cert. denied, 119 S.
Ct. 899 (1999).
Lastly, Johnson was not entitled to the accessory after the
fact instruction simply because it was his theory of the case.
“A defendant is always entitled to have his theory of the case,
if it could amount to a lawful defense, fairly submitted to the
consideration of the jury.” United States v. Flom, 558 F.2d
1179, 1185 (5th Cir. 1977) (emphasis added); see United States v.
Lamp, 779 F.2d 1088, 1097 (5th Cir. 1986). Accessory after the
fact, unlike self-defense, is not a lawful defense to the crime
19 of capital murder. The trial judge’s refusal to instruct the
jury on accessory after the fact therefore did not amount to a
violation of due process. See Lamp, 779 F.2d at 1097 (stating
that failure to give defendant’s proffered instruction was not
error where theory, even if believed, “would not have warranted
acquittal”); United States v. Grapp, 653 F.2d 189, 195 (5th Cir.
Unit A Aug. 1981) (“Reversible error occurs when there is an
evidentiary foundation for the defense and the defense would be
legally sufficient to warrant an acquittal if believed by the
jury.”). We thus affirm the district court’s denial of habeas
relief on this issue.
C. Limitation on Testimony Regarding Fields’s Motive
Johnson’s next argument on appeal is that the trial court’s
limitation on his cross-examination of Fields regarding Fields’s
motive to kill Officer Langham violated his rights under the
Confrontation Clause, as incorporated to the states through the
Fourteenth Amendment. The trial court’s grant of the state’s
motion in limine prevented the introduction of testimony or
evidence concerning Fields’s belief that Officer Langham had
previously killed an African-American man. According to Johnson,
the court’s ruling prevented him from effectively impeaching
Fields by showing that he had a motive to kill Officer Langham.
The Mississippi Supreme Court rejected Johnson’s argument in
his direct appeal, concluding that “[t]he mere fact Langham had
20 [previously] killed a black man in and of itself had no relevancy
to this case.” Id. at 211. Whether the trial court’s refusal to
allow cross-examination on this subject violated Johnson’s
constitutional rights is a mixed question of law and fact that
this court reviews de novo. See Gochicoa, 118 F.3d at 445. A
state court’s evidentiary rulings present cognizable habeas
claims only if they run afoul of a specific constitutional right
or render the petitioner’s trial fundamentally unfair. See Cupit
v. Whitley, 28 F.3d 532, 536 (5th Cir. 1994).
We are unpersuaded by Johnson’s argument that his inability
to delve into whether Fields was aware that Officer Langham had
previously killed an African-American man violated his rights
under the Confrontation Clause. “[T]rial judges retain wide
latitude insofar as the Confrontation Clause is concerned to
impose reasonable limits on such cross-examination based on
concerns about, among other things, harassment, prejudice,
confusion of the issues, the witness’ safety, or interrogation
that is repetitive or only marginally relevant.” Delaware v. Van
Arsdall, 475 U.S. 673, 679 (1986). In order to determine whether
a trial court’s restriction on cross-examination is reasonable,
“we must assess whether the jury was given adequate information
to appraise the bias and motives of the witness.” United States
v. Mizell, 88 F.3d 288, 293 (5th Cir. 1996); see United States v.
Cooks, 52 F.3d 101, 104 (5th Cir. 1995).
21 The trial judge in this case allowed extensive testimony and
questioning regarding potential sources of Fields’s bias and his
credibility as a witness. First, throughout the cross-
examination of Fields, Johnson’s attorney questioned Fields
regarding multiple inconsistent statements Fields had made before
Johnson’s trial. Second, Johnson’s attorney questioned Fields
extensively regarding Fields’s guilty plea to accessory after the
fact and his incentive to testify that Johnson had killed Officer
Langham in order to exculpate himself of the killing. Third,
Fields admitted on cross-examination that, during some portion of
his direct-examination testimony, he was not testifying from
personal knowledge, but rather that he was relying on information
provided by “the investigators that were questioning” him.
Further, Fields admitted on cross-examination that sometimes when
he “get[s] nervous and upset, it’s hard for [him] to tell the
truth,” and that he was nervous and upset when he gave several
statements to the authorities. In addition, Fairley’s testimony
that he had seen Fields murder Officer Langham raised a strong
inference that Fields was lying. Given the testimony the jury
heard regarding Fields’s incentive to testify favorably for the
state, we do not believe that the jury would have received a
significantly different impression of Fields’s credibility had
defense counsel been able to cross-examine Fields on his belief
that Officer Langham had killed an African-American man. See Van
Arsdall, 475 U.S. at 680; Mizell, 88 F.3d at 294 (concluding that
22 excluded impeachment evidence did not violate defendant’s
Confrontation Clause rights, given extensive admitted impeachment
evidence); United States v. Hamilton, 48 F.3d 149, 155 (5th Cir.
1995) (concluding that because “so much additional impeachment
evidence was admitted,” trial judge’s refusal to allow
impeachment of witness in certain area “could not have affected
the trial so as to prejudice [the defendant’s] substantial
rights”).
We are also convinced that the trial court’s refusal to
allow testimony on whether Fields believed that Officer Langham
had previously killed an African-American man did not violate
Johnson’s rights under the Due Process Clause by rendering
Johnson’s trial fundamentally unfair. The failure to admit
evidence amounts to a due process violation only when the omitted
evidence is a crucial, critical, highly significant factor in the
context of the entire trial. See Thomas v. Lynaugh, 812 F.2d
225, 230 (5th Cir. 1987). Again, we agree with the district
court that the mere fact that Fields may have known that Officer
Langham had killed an African-American man would not have been a
crucial, critical, highly significant factor in the context of
the entire trial.
Johnson also argues that his rights under the Confrontation
Clause were violated because the trial court “refused to allow
the defense to []examine Fairley on a statement made to him by
Fields that ‘[Fields] knew the Highway Patrolman had murdered a
23 black person and that if [Fields] let him go he thought the
Highway Patrolman would go for his gun and kill us before we
could leave.’” We find no authority in support of Johnson’s
assertion that his rights under the Confrontation Clause extend
to the opportunity to impeach the state’s primary witness through
the testimony of a witness favorable to the defense.7 See, e.g.,
Davis v. Alaska, 415 U.S. 308, 315-16 (1974) (“The main and
essential purpose of confrontation is to secure for the opponent
the opportunity of cross-examination.”) (internal quotation marks
omitted) (emphasis in original); cf. United States v. Kindig,
854 F.2d 703, 709 (5th Cir. 1988) (stating that Confrontation
Clause is not implicated where witness’s testimony is not adverse
to defendant).
Further, we note that, despite Fairley’s assertion in his
affidavit that he was “not allowed to testify” to his entire
statement, the motion in limine did not prevent Fairley from
testifying that Fields had admitted to killing Officer Langham or
that Fields was worried that “if he let [Officer Langham] go he
thought the Highway Patrolman would go for his gun and kill us
7 Even assuming that the trial court’s evidentiary limitation prevented Johnson from offering the testimony of a favorable witness, and that this prohibition infringed Johnson’s rights under the Compulsory Process Clause of the Sixth Amendment, such infringement was harmless. Given the scope of impeachment evidence allowed as to Fields’s bias to testify in favor of the state and his credibility as a witness, we do not believe that the omission contributed “beyond a reasonable doubt” to the verdict. Van Arsdall, 475 U.S. at 684; see Crane v. Kentucky, 476 U.S. 683, 691 (1986).
24 before we could leave.” The motion in limine therefore only
prevented Fairley from testifying that Fields believed that
Officer Langham had previously killed an African-American man.
The omission of this information, as we concluded supra, did not
amount to a violation of Johnson’s due process rights. We
therefore affirm the district court’s denial of habeas relief on
this ground.
D. Trial Court’s Denial of Johnson’s Continuance Motion
Johnson next claims that the trial court’s refusal to grant
a continuance to obtain the attendance of allegedly crucial
expert witnesses denied his right to a fair trial. The experts
in question were forensic scientists, Dale Nute and James
Halligan, both of whom were allegedly prepared to testify that
cuts on Johnson’s hands were consistent with his defense that he
tried to prevent Fields from stabbing Officer Langham with the
knife. According to Johnson, scheduling conflicts prevented the
two men from testifying.
The Mississippi Supreme Court rejected this claim on
Johnson’s direct appeal, concluding it was “frivolous” because
Johnson did not attach any affidavits to his continuance motion
indicating the materiality of the experts’ testimony and because
he filed his motion only ten days before his trial was set to
begin. Johnson, 477 So. 2d at 210-11. The district court
concluded that the state trial court had not abused its
25 discretion in denying the continuance motion, and, in any event,
that Johnson had failed to show that the experts’ testimony would
have altered the verdict. We review Johnson’s claim that the
trial court’s denial of his continuance motion amounted to a due
process violation de novo. See Schrader v. Whitley, 904 F.2d
282, 288-89 (5th Cir. 1990).
As the district court correctly noted, “‘[w]hen a denial of
a continuance forms a basis of a petition for a writ of habeas
corpus, not only must there have been an abuse of discretion but
it must have been so arbitrarily and fundamentally unfair that it
violates constitutional principles of due process.’” Schrader,
904 F.2d at 288 (quoting Hicks v. Wainwright, 633 F.2d 1146, 1148
(5th Cir. Unit B Jan. 1981)). Among the factors we must consider
in determining whether a trial court abused its discretion in
denying a continuance motion are: the defense’s diligence in
interviewing and procuring the presence of the witnesses, the
defense’s estimation of the probability of procuring live
testimony within a reasonable time, the specificity with which
the defense is able to describe the expected testimony, the
degree to which such testimony is expected to be favorable to the
accused, and the unique or cumulative nature of the testimony.
See id.; Hicks, 633 F.2d at 1149.
We agree with the Mississippi Supreme Court and the district
court that Johnson has failed to show that the trial court abused
its discretion in denying the continuance motion. Johnson’s only
26 argument in support of his contention that the trial court abused
its discretion in denying the motion is that, quoting United
States ex rel. Martinez v. Thomas, 526 F.2d 750, 755 (2d Cir.
1975), “a myopic insistence upon expeditiousness in the face of a
justifiable request for delay can render the right to defend with
counsel an empty formality.” We agree with Johnson that, under
some circumstances, a trial court’s refusal to grant a
continuance can interfere with a defendant’s constitutional
rights. See Hicks, 633 F.2d at 1149-50 (concluding that trial
court’s denial of continuance motion violated petitioner’s due
process rights). However, unlike in Hicks, Johnson has presented
no evidence that he informed the trial judge of the uniqueness,
materiality, and imminent availability of his witnesses’ live
testimony. On the contrary, Johnson attached no affidavits to
his continuance motion indicating what the experts’ proposed
testimony would be or addressing the materiality or necessity of
their testimony. Moreover, on August 18, 1982, twelve days
before the trial was to begin, the trial court told Johnson’s
counsel that “I don’t know what [the experts are] going to
testify to or anything about it and I don’t know where it’s
material or immaterial . . . .” Johnson’s attorney only replied
that Johnson would likely call the experts to testify, and that
the availability of the experts was important to “help [the
defense] understand the basis of [the state’s] case.” Unlike in
Hicks, where it was clear that the witness at issue would be
27 available to testify later that day, see id. at 1148, Johnson’s
counsel gave no indication when Nute and Halligan could give
testimony. Thus, we conclude that, given the lack of specificity
with which Johnson’s counsel described the experts’ proposed
testimony, the materiality of the testimony, or the probability
of procuring the presence of the experts within a reasonable
time, the trial court did not abuse its discretion in denying
Johnson’s motion for a continuance. We therefore affirm the
district court’s denial of habeas relief on this issue.
E. Batson Claim
Johnson next claims that he is entitled to collateral relief
because his conviction for capital murder was the result of
racial prejudice in the selection of his jury, relying on Batson
v. Kentucky, 476 U.S. 79 (1986). Specifically, he requests that
this court order a Batson hearing in light of his assertion that
the prosecutor in Johnson’s trial used each of his seven
peremptory challenges to strike African Americans from the jury.
Prior to his trial, Johnson moved the court for an order to
enjoin the prosecution from using peremptory challenges to
exclude African Americans from the jury. The trial court granted
Johnson’s motion. Johnson maintains that, despite the motion, at
his trial the prosecution exercised all seven of its peremptory
challenges to strike African Americans. It is clear from the
record that Johnson did not object to the prosecution’s use of
28 its peremptory strikes during his trial. Johnson first raised
his argument that, under Batson, he had made a prima facie
showing that the state’s use of its peremptory strikes violated
the Equal Protection Clause in his first motion for post-
conviction relief.
We agree with the district court that the state court relied
on a procedural bar in denying relief on this issue. Under the
procedural default doctrine, a federal court may not consider a
state prisoner’s federal habeas claim when the state has based
its rejection of that claim on an independent and adequate state
ground. See Martin, 98 F.3d at 847. We conclude that the
Mississippi Supreme Court based its rejection of Johnson’s Batson
claim on state procedural bars independent of the merits of the
claim--namely, that Johnson had failed to object to the state’s
use of its peremptory challenges during his trial and that he
failed to raise the issue on direct appeal. In the first
paragraph of its opinion, the court stated that it would “address
only those assignments contemplated by the [Mississippi Uniform
Post-Conviction Collateral Relief Act] for which we are
authorized to review in a petition of this nature.” Johnson, 511
So. 2d at 1335. It then proceeded to discuss the two procedural
bars relevant to Johnson’s Batson claim, a petitioner’s failure
to raise an objection during his or her trial and a petitioner’s
failure to raise an issue on direct appeal. See id. at 1336
29 (quoting MISS. CODE ANN. § 99-39-21).8 The Mississippi Supreme
Court’s failure to discuss Johnson’s Batson claim on the merits,
in light of its statement that it found those issues that it did
not discuss on the merits to be procedurally barred, convinces us
that the state court based its rejection of this claim on a state
procedural bar.
Johnson’s argument that the state court failed to “clearly
state[] and appl[y]” a procedural bar because it mistakenly did
not list his Batson claim in its list of claims that were
procedurally barred lacks merit. See id. at 1342 (denying as
procedurally barred three claims, including Johnson’s Brady
claim, discussed supra, that Johnson had “failed to raise at
trial or on the direct appeal”). Simply put, it does not fairly
appear from our reading of the state court’s opinion that the
Mississippi Supreme Court “rested its decision primarily on
federal law”; thus, we need not reach the question of whether the
state court’s opinion “contains a plain statement that its
8 That section provides in part:
Failure by a prisoner to raise objections, defenses, claims, questions, issues or errors either in fact or law which were capable of determination at trial and/or on direct appeal, regardless of whether such are based on the laws and the Constitution of the state of Mississippi or of the United States, shall constitute a waiver thereof and shall be procedurally barred, but the court may upon a showing of cause and actual prejudice grant relief from the waiver.
MISS. CODE ANN. § 99-39-21(1).
30 decision rests upon adequate and independent state grounds.”
Harris v. Reed, 489 U.S. 255, 261 (1989) (internal quotation
marks omitted) (alterations omitted); see Young v. Herring, 938
F.2d 543, 548 (5th Cir. 1991) (en banc). In sum, “any ambiguity
that may have existed pertained only to the precise state law
ground on which Mississippi based its rejection of [Johnson’s]
claim, and such an ambiguity is not relevant to a Harris plain
statement analysis.” Young, 938 F.2d at 551.
Thus, we conclude that the Mississippi Supreme Court based
its rejection on a state procedural ground independent of the
merits of Johnson’s claim. In addition to the requirement that
the state procedural ground relied upon by the state court be
independent of the merits of the claim, the procedural bar must
also be adequate; i.e., the procedural rule must be strictly or
regularly applied by the state to the vast majority of similar
claims. See Martin, 98 F.3d at 847; Amos, 61 F.3d at 339. This
requirement has been met here; the Mississippi Supreme Court
regularly applies the contemporaneous objection rule to Batson
claims. See Wiley v. Puckett, 969 F.2d 86, 103 (5th Cir. 1992);
Hill v. Black, 887 F.2d 513, 516-17 (5th Cir. 1989), vacated on
other grounds, 498 U.S. 801 (1990), reinstated, 920 F.2d 249 (5th
Cir. 1990).
Unlike the Brady/Giglio claim discussed supra, Johnson does
not attempt to show cause for, or actual prejudice resulting
from, his procedural default. We are therefore precluded from
31 considering the merits of this claim, and we affirm the district
court’s denial of habeas relief on this issue.
F. The Capital Murder Instruction
In his final claim of error, Johnson argues that the trial
court’s failure to instruct the jury on an essential element of
the offense of murder violated his constitutional rights.
Specifically, Johnson contends that the instruction describing
the offense of murder to the jury relieved the state of its
burden to prove intent on Johnson’s part, as required by
Mississippi Code § 97-3-19.
The jury instruction at issued provided that “[t]he
defendant, Samuel Johnson, has been charged by an indictment with
the crime of capital murder for having wilfully, unlawfully,
feloniously, of his malice aforethought and without authority
kill[ed] and murder[ed] Billy Morris Langham, a human being
. . . .” The second part of the instruction was composed of six
requirements for a guilty verdict, including the following two:
1) The defendant, Samuel Johnson, aided and commanded Charles Montgomery to commit capital murder by stabbing Officer Billy Morris Langham with a knife and ordering Charles Montgomery to shoot Officer Billy Langham; and 2) That Charles Montgomery wilfully, unlawfully, feloniously and of his malice aforethought and without authority of law kill[ed] and murder[ed] Billy Morris Langham . . . .
Johnson argues that the jury instruction failed to instruct
the jury that they must find that Johnson intended to kill
32 Officer Langham, and instead allowed the jury to impute the
intentions of Montgomery to Johnson.
The Mississippi Supreme Court rejected this argument on
Johnson’s direct appeal. See Johnson, 477 So. 2d at 212.
According to the state court, “[i]t can be readily observed that
the first part of [the instruction] requires intent on the part
of Johnson to kill Langham,” and the second part of the
instruction “clearly define[s] the acts necessary to come within
the capital murder framework.” Id. The Mississippi Supreme
Court concluded that “[t]he jury could not have been misled by
this instruction.” Id.
As we stated in Kinnamon v. Scott, 33 F.3d 462 (5th Cir.
1994), “[a]s a federal habeas court, our question is whether the
ailing instruction by itself so infected the entire trial that
the resulting conviction violates due process, not merely whether
the instruction is undesirable, erroneous, or even universally
condemned.” Id. at 465 (internal quotation marks omitted)
(citing Henderson v. Kibbe, 431 U.S. 145, 154 (1977)); see
Livingston v. Johnson, 107 F.3d 297, 312 (5th Cir.), cert.
denied, 118 S. Ct. 204 (1997). We agree with the district
court’s conclusion that “[a]lthough the instruction could have
been made clearer, its problematic portions regarding intent were
not so egregious as to violate due process.” Considering the
charge as a whole, the testimony adduced at trial, and the
arguments of counsel, we are not persuaded that there is a
33 “reasonable likelihood that the jury applied the instruction in a
constitutionally impermissible way.” Kinnamon, 33 F.3d at 465.
We therefore affirm the district court’s denial of collateral
III. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the
district court.