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Johnson v. Genovese

United States Court of Appeals, Sixth Circuit

May 28, 2019

Joseph Lamont Johnson, Jr., Petitioner-Appellant,
v.
Kevin Genovese, Warden, Respondent-Appellee.

          Argued: March 20, 2019

          Appeal from the United States District Court for the Middle District of Tennessee at Nashville. No. 3:14-cv-02305-Waverly D. Crenshaw, Jr., District Judge.

         ARGUED:

          Michael C. Holley, FEDERAL PUBLIC DEFENDER, Nashville, Tennessee, for Appellant.

          John H. Bledsoe, OFFICE OF THE ATTORNEY GENERAL, Nashville, Tennessee, for Appellee.

         ON BRIEF:

          Michael C. Holley, FEDERAL PUBLIC DEFENDER, Nashville, Tennessee, for Appellant.

          Nicholas S. Bolduc, OFFICE OF THE ATTORNEY GENERAL, Nashville, Tennessee, for Appellee.

          Before: McKEAGUE, GRIFFIN, and NALBANDIAN, Circuit Judges.

          OPINION

          GRIFFIN, CIRCUIT JUDGE

         Petitioner Joseph Johnson was convicted of multiple felonies in Tennessee state court arising out of the robbery of a Nashville Taco Bell. He now seeks a writ of habeas corpus, arguing that his Sixth Amendment right to counsel was violated by his trial counsel's deficient performance in the pretrial plea-negotiation phase of his state-court proceedings and that the state court's opposite conclusion was contrary to or involved an unreasonable application of federal law. The district court found no basis for habeas relief and, for the reasons that follow, we affirm.

         I.

         In November of 2003, petitioner and a friend robbed a Taco Bell of approximately $200 to $300. State v. Johnson, M2007-01644-CCA-R3-CD, 2009 WL 2567729 at *1-2 (Tenn. Crim. App. Aug. 18, 2009). Police captured them shortly thereafter. Id. at *3. Petitioner was indicted on four charges related to that robbery. Id. at *1. Attorney Paul Walwyn represented petitioner for pretrial and trial proceedings. A few days before trial began, the state offered a plea deal for petitioner to plead guilty to all counts in exchange "for a 20 year sentence as a range two offender." He allegedly rejected that offer, though the parties debate some facts surrounding the plea process.

         So he went to trial, where a Tennessee jury subsequently convicted him of all four charges: two counts of aggravated robbery, one count of aggravated assault, and one count of felony evading arrest, though one aggravated-robbery conviction was later changed to aggravated assault due to double jeopardy concerns. Id. at *1, *5. The trial court sentenced him to twenty-eight years' imprisonment for aggravated robbery, eight years' imprisonment for one conviction of aggravated assault, ten years' imprisonment on the other aggravated-assault conviction, and eight years' imprisonment for evading arrest, all to be served consecutively, for a total of fifty-four years in prison. Id. On direct appeal, petitioner raised sufficiency-of-the-evidence claims on all four convictions, challenges to his jury instructions, and challenges to his sentences' lengths and their consecutive nature. Id. at *5-19. The Tennessee Court of Criminal Appeals (TCCA) affirmed, and the Tennessee Supreme Court denied him permission to appeal. See id., perm. app. denied (Feb. 22, 2010).

         Petitioner then filed a timely motion for postconviction relief in state court. Among the numerous issues he raised was a claim of ineffective assistance of trial counsel during the plea- negotiation process. At an evidentiary hearing on the petition, he testified that his attorney never advised him of the 20-year plea offer until years after trial, when he received the state's discovery packet. When asked if he would have accepted the offer, petitioner testified variously that "you damn skippy, with 50 something years, I would have took 20 years," and "[i]t's possible, if I knew what I was facing going to trial. It's highly likely, yes, I would have accepted that 20 year deal." But throughout the postconviction proceedings, petitioner maintained his innocence of the crimes, and even speculated that he may have been misidentified.

         His trial counsel, Walwyn, also testified at the hearing. On the issue of plea offers, Walwyn stated that he

explained to [petitioner], because of his prior record, it's, you know, the [prosecutor] is taking a hard stance on this case. And basically they're wanting him to plead to a lot of time, and he said, ["]well, I'm innocent, I didn't rob anybody, I didn't do it.["] He always said the same thing . . . . But in any event, even prior to the trial, he basically said that I'm not taking a deal of any sort.

         He later reiterated that he "did relay the offer" to petitioner, but petitioner told him "he was not taking any time for this."

         The postconviction court denied petitioner relief in a written order, crediting Walwyn's testimony that he communicated the offer and that petitioner was not interested in taking any plea agreement. Petitioner again appealed to the TCCA, which again affirmed. Johnson v. State, M2012-02310-CCA-R3-PC, 2014 WL 793636, at *1 (Tenn. Crim. App. Feb. 27, 2014). For the first time, the TCCA expanded petitioner's claim from one in which his trial counsel never conveyed the plea offer to him, to an additional ineffectiveness claim-that Walwyn conveyed the plea offer but did not advise petitioner of the much higher, consecutive sentence he could face after trial. Id. at 7. Addressing this new formulation, the TCCA reasoned that Walwyn's performance was deficient, but petitioner could not establish prejudice. Id. at *8-9. The court recited the pertinent standards for determining ineffective assistance in the plea context and specifically quoted Lafler v. Cooper, 566 U.S. 156 (2012), for the standard a defendant must meet to show prejudice in the plea-negotiation context. Johnson, 2014 WL 793636, at *8-9. The court reasoned that, despite the big disparity between the plea offer and the possible sentence petitioner faced after trial, he could not show prejudice because he was uninterested in takin any plea offer at the time. Id. at *9. The Tennessee Supreme Court again denied him permission to appeal. See id., perm. app. denied (Jul. 14, 2014).

         Petitioner then timely filed this petition for habeas corpus. He raised numerous claims of ineffective assistance, including that Walwyn provided constitutionally deficient counsel during the plea-negotiation stage. In a thorough opinion, the district court dismissed the petition. On the pertinent ineffective-assistance issue, the district court determined that the TCCA opinion did not contradict or unreasonably apply clearly established federal law, nor did that court base its decision on an unreasonable determination of the facts. We granted a certificate of appealability limited to his claim of ineffective assistance during plea bargaining.

         II.

         "In an appeal from the denial of habeas relief, we review the district court's legal conclusions de novo and its factual findings for clear error." Scott v. Houk, 760 F.3d 497, 503 (6th Cir. 2014) (citation omitted). Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), we can overturn a state conviction for an issue adjudicated on the merits only if the relevant state-court decision was (1) "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States;" or (2) "based on an unreasonable determination of the facts in light of the evidence presented." 28 U.S.C. § 2254(d). When a habeas petition arising under § 2254(d) is based upon a claim of ineffective assistance of counsel, relief is all the more difficult to come by. The standard for § 2254(d) relief and the test for ineffective assistance under Strickland v. Washington, 466 U.S. 668 (1984), are each "highly deferential." Harrington v. Richter, 562 U.S. 86, 105 (2011) (quoting Strickland, 466 U.S. at 689). "[A]nd when the two apply in tandem, review is 'doubly' so." Id. (quoting Knowles v. Mirzayance, 556 U.S. 111, 123 (2009)).

         III.

         The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall . . . have the Assistance of Counsel for his defence." U.S. Const. amend. VI. It includes "the right to effective counsel-which imposes a baseline requirement of competence." United States v. Gonzalez-Lopez, 548 U.S. 140, 148 (2006) (emphasis added). And it applies at all critical stages of criminal litigation, including pretrial plea proceedings. Logan v. United States, 910 F.3d 864, 868 (6th Cir. 2018) (citing Missouri v. Frye, 566 U.S. 134, 140 (2012)). A defendant who rejects or otherwise misses out on a formal plea offer because of deficient ...


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