                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-7-2008

Johnson v. Lehman
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2683




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Recommended Citation
"Johnson v. Lehman" (2008). 2008 Decisions. Paper 401.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/401


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                                                         NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                              _____________

                                 No. 07-2683
                                _____________

                             RONALD JOHNSON,

                                                    Appellant

                                        v.

 JOSEPH D. LEHMAN; THE ATTORNEY GENERAL OF PENNSYLVANIA; THE
           DISTRICT ATTORNEY OF PHILADELPHIA COUNTY,

                                                                   Appellees

                                _____________

                 On Appeal from the United States District Court
                     for the Eastern District of Pennsylvania
                             (D.C. No. 94-cv-07583)
                  District Judge: Honorable Norma L. Shapiro
                                  ____________

                   Submitted Under Third Circuit L.A.R. 34.1(a)
                             on September 12, 2008
                                 ____________

          Before: SLOVITER, FUENTES and ALDISERT, Circuit Judges

                            (Filed October 7, 2008 )


                                   OPINION


ALDISERT, Circuit Judge
       Ronald Johnson filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C.

§ 2254, contending that the assistance of his counsel was ineffective during his

Commonwealth of Pennsylvania murder trial, at which Johnson was convicted of murder

of the first degree, criminal conspiracy and possession of an instrument of crime.

       Specifically, Johnson argues that his trial attorney failed to conduct a reasonable

investigation and failed to present the testimony of two witnesses who would have

corroborated Johnson’s alibi defense. A Magistrate Judge issued a report recommending

denial and dismissal of Johnson’s petition, determining that although Johnson’s trial

counsel representation was deficient, trial counsel’s performance was not prejudicial to

Johnson because a reasonable jury would not have determined that he was not guilty,

even with the supporting testimony of the two uncalled witnesses. The District Court

approved and adopted the Magistrate Judge’s report and recommendation, as

supplemented by its memorandum, and issued an order denying and dismissing Johnson’s

petition. For the following reasons, we will affirm the District Court’s order.

                                             I.

       Because we write solely for the parties who are familiar with the facts and

proceedings in the District Court, we need only briefly recite the facts. The testimony at

trial established that the victim, Joseph Goldsby, who was selling crack cocaine, was shot

and killed on March 1, 1990. Johnson approached the victim’s car with an unknown male

and female and engaged the victim in drug-related conversation. Two eyewitnesses to the



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incident, Darryl Alexander and Mark Jackson, testified that they knew Johnson and

detailed his involvement in the murder. Jackson also testified that Johnson approached

him several days after the murder and told him to “be careful what you say.”

       Johnson testified and called Richard Duncan as a witness to establish an alibi

defense. Johnson and Duncan testified that they were away from the scene of the crime,

that they were in a car getting high on narcotics and were unaware of Goldsby’s murder

until they were so advised by a man named James Smith, also known as “Seed.”

       Robin Johnson and Derrick Holmes, two additional witnesses present at the scene

of the murder, gave statements to the police shortly after the date of the crime. Appellant

Johnson’s trial counsel reviewed these statements, but did not interview Robin Johnson or

Holmes and did not call them as witnesses at trial. The crux of Johnson’s ineffective

assistance of counsel claim is that the testimony of Robin Johnson and Holmes would

have supported his alibi defense, and that it was unreasonable and prejudicial for

Johnson’s trial counsel to fail to interview and call these two witnesses after reviewing

their police statements.

       We are to decide the sole issue of whether Johnson was denied competent counsel

guaranteed by the Sixth Amendment because his lawyer failed to interview or call Derrick

Holmes and Robin Johnson, two eyewitnesses who would have supported Johnson’s alibi




                                             3
                               1
defense at his murder trial.

                                              II.

       In Strickland v. Washington, 466 U.S. 668 (1984), the Court set forth a two-prong

test that a petitioner must satisfy before a court will find that counsel did not provide

effective assistance. Under Strickland, a petitioner must show (1) that his attorney’s

representation fell below an objective standard of reasonableness; and (2) that there exists

a reasonable probability that, barring counsel’s ineffectiveness, the result of the

proceeding would have been different. Id. at 687.

       The Magistrate Judge and the District Court determined that a reasonable jury

would not have determined that Johnson was not guilty, even with the supporting

testimony of Robin Johnson and Derrick Holmes. We agree. Even if Johnson’s trial

counsel fell below an objective standard of reasonableness, his deficiency did not

prejudice Johnson. Id.

       To satisfy the second prong of the Strickland test, a petitioner must show that there

is a reasonable probability that, but for counsel’s errors, the result of the proceeding



       1
         The District Court had jurisdiction under 28 U.S.C. § 2254. This Court has
jurisdiction pursuant to 28 U.S.C. §§ 1291, 2253. Johnson’s federal habeas petition was
pending prior to the enactment of the Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”), so this case must be decided by the law as it existed before AEDPA
became effective. See Lindh v. Murphy, 521 U.S. 320, 322-323 (1997); Buehl v. Vaughn,
166 F.3d 163, 169 (3d Cir. 1999). Under pre-AEDPA law, ineffective assistance of
counsel claims present mixed questions of law and fact. Buehl, 166 F.3d at 169. State
court findings of fact are presumed correct if they are fairly supported by the record, but
whether counsel was effective is subject to de novo review. Id.

                                              4
would have been different. Id. at 694. “A reasonable probability is a probability sufficient

to undermine confidence in the outcome” of the proceeding. Id. The Magistrate Judge

noted that the evidence against Johnson was not overwhelming, because the testimony of

the Commonwealth’s two main eyewitnesses, Darryl Alexander and Mark Jackson, was

contradicted by their earlier police statements that they could not identify the culprits in

the victim’s shooting. But Johnson’s alibi was not fully credible either. Although the

testimony of Robin Johnson and Derrick Holmes would have furnished some support of

Johnson’s alibi defense, we agree with the District Court that there is no reasonable

probability that their testimony would have created a reasonable doubt in the minds of the

jurors. Two eyewitnesses to the incident–Alexander and Jackson–testified that they knew

Johnson and described in specific detail Johnson’s involvement in the murder.

       Neither Robin Johnson nor Derrick Holmes were eyewitnesses to the shooting.

Neither provided Johnson with an affirmative alibi, as did Duncan, the defense witness

called at trial. Rather, the testimony of Holmes and Robin Johnson merely would have

established that they did not see Johnson while they were present buying drugs. At trial,

the Commonwealth came forth with eyewitnesses to the killing who specifically saw

Johnson standing outside the victim’s car in the process of attempting to fire his gun at

the victim. No witnesses came forward to allege that the person attempting to fire his gun

in this matter was someone other than Johnson. At best, the testimony of Holmes and

Robin Johnson would show that they did not see Johnson in the brief time they were



                                              5
there. In view of the detailed eyewitness testimony to the crime presented at trial, such

testimony does not create a reasonable probability that the jury would have doubted its

guilty verdict.

                                          ******

       We have considered all contentions raised by the parties and conclude that no

further discussion is necessary.

       The judgment of the District Court will be affirmed.




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