          [NOT RECOMMENDED FOR FULL-TEXT PUBLICATION]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



      *
         The Honorable Richard Mills, United States District Judge for the Central
District of Illinois, sitting by designation.
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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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