                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-19-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3428




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"Johnson v. Carroll" (2005). 2005 Decisions. Paper 384.
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                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                      No: 04-3428

                               EDWARD N. JOHNSON,

                                             Appellant

                                                v.

                          THOMAS L. CARROLL, Warden;
                        THE ATTORNEY GENERAL OF THE
                             STATE OF DELAWARE

                     On Appeal from the United States District Court
         for the District of Delaware, Pursuant to a Certificate of Appealability
                               Granted by the District Court
                                  (Case No. 02-1563-JJF)
                           District Judge: Hon. Joseph J. Farnan

                      Submitted Under Third Circuit LAR 34.1(a)
                                 September 16, 2005

                    Before: ROTH, McKEE, FISHER, Circuit Judges

                                (Filed: October 19, 2005)


                                        OPINION

McKEE, Circuit Judge.

      Edward Johnson challenges the district court’s denial of his petition for a writ of

habeas corpus. The district court granted Johnson permission to appeal his claim under

Strickland v. Washington, 466 U.S. 668 (1984). Johnson maintained that his Sixth


                                            1
Amendment right to counsel had been denied by trial counsel’s failure to object to

evidence suggested that he fit the profile of a drug courier. For the reasons that follow,

we will affirm the district court’s denial of the writ.

                               I. Facts & Procedural History.1

                       At approximately 9:00 p.m. on December 2, 1997,
               officers from the City of Dover Police Department were
               dispatched to an apartment in response to an “assault in
               progress” complaint made by an anonymous female 911
               caller. Upon entering the premises, a second floor apartment,
               the officers discovered Johnson lying on the living
               room/kitchen floor. Johnson had been shot in the thigh. His
               legs were bound together with duct tape. It was later
               determined that the beating had also fractured Johnson's right
               femur. When the officers arrived at the apartment, Johnson
               told them that a person named Chris had shot him.

                       In the apartment, the police officers also discovered a
               small female child, later determined to be 18-months old,
               positioned on the floor next to Johnson. On the same floor,
               the police discovered a .25 caliber shell casing, a clean diaper,
               a roll of duct tape, and a box of sandwich type bags. Another
               box, containing several .25 caliber rounds, was found on the
               kitchen counter. The police found Cheryl Harris, the tenant,
               sitting in her bedroom. Harris's lethargic presence made the
               officers believe that she was under the influence of some
               drug.

                      The paramedics took both Johnson and the child to the
               Kent General Hospital. . . . Because the child's diaper felt
               heavy, the nurse proceeded to change the child's diaper in an
               adjacent room.



       1
         Because the factual background for Johnson’s claim of error is important to a proper
resolution of his appeal we take the liberty of quoting the state court’s summary of the facts in
some detail.

                                                 2
       When the nurse opened the diaper, she discovered two
bags containing a total of 136 grams of cocaine inside the
diaper. There were also several paper towels which were
placed between the cocaine and the child's crotch. Although
the paper towels appeared soiled, the diaper was dry.

       Without telling Johnson that cocaine had been
discovered in the child's diaper, a detective questioned
Johnson in the emergency room. Johnson told the detective
that he was from New Jersey. According to Johnson, he and
the child were going to Maryland in a rental car to visit a
person named Charles Riley. Johnson said he did not know
the name of the town in Maryland where Riley lived. While
driving to Maryland, Johnson stated that he was paged by
Chris, who asked Johnson to come to Dover apartment.

       After arriving at the Dover address, Johnson
approached the apartment. He was immediately accosted by
two males, one of whom had a gun. The assailants forced
Johnson upstairs into an apartment. One of the assailants took
the child from him. Johnson was beaten and bound with duct
tape, before being shot in the leg by Chris. Johnson told the
police that Chris and he had “a beef” earlier in their
relationship, but did not know why Chris and the others
attacked him.

        When the detective confronted Johnson about the
cocaine found inside the diaper, Johnson denied any
knowledge. He surmised that Chris must have planted it to set
him up. The police suspected that “Chris” was Chris
Burroughs, who was known to them as a drug dealer in
Dover, and frequented the Dover apartment where they found
Johnson. After presenting him with a photo line-up, Johnson
identified Burroughs as the person who shot him.

       Upon searching Johnson's clothing at the hospital, the
police found keys for an Avis rental car. These keys listed the
tag number for an automobile. Other Dover Police officers
located the rental car parked approximately 150 feet from the
Dover apartment where Johnson had been found. The police


                               3
             suspected that someone had rummaged through the car, which
             was unlocked when they found it.

                    After obtaining a search warrant, the Dover Police
             conducted a thorough search of the car. No contraband or
             drug paraphernalia was found in the car. The police did,
             however, seize: correspondence, addressed to Johnson at a
             Poughkeepsie, New York address; an Avis rental agreement,
             issued to a “Lincoln Grant” that same day at 3:35 p.m. in
             Mount Vernon, New York; and a backpack containing the
             same type of diapers worn by the infant child who was with Johnson.

                      Without any objection from Johnson's defense attorney
             at trial, the State called Detective William L. Kent to testify as
             an expert witness regarding the sale of illegal drugs. Detective
             Kent told the jury that Johnson fit the profile of a drug courier
             because: Mount Vernon, New York, where the car was rented,
             is only 10-15 miles north of the Bronx; that New York City is
             a major “source city” for cocaine sold in Dover; and that
             illegal drug dealers often have couriers transport the
             contraband in rental cars. In its closing argument to the jury,
             the State theorized that the drugs must have belonged to
             Johnson, in part, because he is from New York City, the
             source city for cocaine, and because he had a rental car, a “red
             flag” indicator for a drug courier.

                    Johnson did not testify at trial. His defense attorney
             argued that no one saw Johnson place two plastic bags of
             crack cocaine in the 18-month-old child's diaper. The defense
             attorney also argued that any contraband found in the diaper
             was probably put there by Johnson's attackers, in order to get
             Johnson in trouble with the police.

                   The jury found Johnson guilty of Trafficking Cocaine,
             Possession with Intent to Deliver Cocaine, and Endangering
             the Welfare of a Child. Johnson's sentences included a
             minimum mandatory term of 30 years' imprisonment.

Johnson v. State, 765 A.2d 926, 927-29 (Del. 2000).



                                             4
       Johnson appealed his conviction and sentence, alleging that it was plain error for

the State to introduce drug courier profile evidence during its case-in-chief as expert

police testimony. The Delaware Supreme Court remanded the case to the Superior Court

for a hearing to determine if Johnson’s trial counsel was ineffective in failing to object to

this evidence. Id. at 930.

       On remand, the Superior Court held that defense counsel was not ineffective.

Johnson appealed, and the Delaware Supreme Court affirmed. Johnson v. State, 813 A.2d

161, 162-63, 168 (Del. 2001).

       Johnson’s federal habeas petition followed. In it, Johnson asserted two claims: (1)

the introduction of drug courier profile evidence at his trial violated his constitutional due

process rights and his right to a fair trial; and (2) trial counsel provided ineffective

assistance by failing to object to the admission of drug courier profile evidence at trial.

       The district court denied Johnson habeas relief concluding that Johnson’s first

claim was procedurally barred from federal habeas review. Johnson v. Carroll, 327 F.

Supp.2d 386, 400 (D.Del. 2004). That issue is not before us. The district court also

concluded that the state courts’ denial of Johnson’s ineffective assistance of counsel

claim was not contrary to, nor an unreasonable application of, Strickland. Id. However,

the district court concluded that Johnson had made a substantial showing of the denial of

a constitutional right and issued a certificate of appealability limited to the issue of

whether Johnson’s counsel was constitutionally ineffective in failing to object to the drug



                                               5
courier profile evidence. Id.

       This appeal followed.

                                      II. Discussion.2

       Johnson argues that his counsel was ineffective when she failed to challenge

clearly improper testimony of a drug courier profile that was unfairly prejudicial and led

to his conviction. The government contends that Johnson has not demonstrated that the

state courts’ application of the Strickland two-prong test for ineffective assistance of

counsel was unreasonable.

       Under Strickland, in order to merit habeas relief based on a claim of ineffective

assistance of counsel, a petitioner must demonstrate that: (1) his/her attorney's

performance was deficient, and (2) he/she was prejudiced by this deficiency. Strickland,



       2
         We apply the same standard of review as the district court, as mandated by the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Since Johnson filed
his petition after the effective date of AEDPA, the amendments to Title 28 contained in
that act govern our review of Johnson’s claim.

       Under the AEDPA amendments to § 2254 applicable to this appeal:

       (d) An application for a writ of habeas corpus on behalf of a person in
       custody pursuant to the judgment of a State court shall not be granted with
       respect to any claim that was adjudicated on the merits in State court
       proceedings unless the adjudication of the claim--

       (1) resulted in a decision that was contrary to, or involved an unreasonable
       application of, clearly established Federal law, as determined by the
       Supreme Court of the United States. . . .

28 U.S.C. § 2254(d)(1).

                                              6
466 U.S. at 687. To demonstrate deficiency, a petitioner must establish that counsel's

performance “fell below an objective standard of reasonableness.” Id. at 688. To

demonstrate prejudice, a petitioner must demonstrate that “counsel's errors were so

serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id. at

687. Ultimately, the “benchmark for judging any claim of ineffectiveness must be

whether counsel's conduct so undermined the proper functioning of the adversarial

process that the trial cannot be relied on as having produced a just result.” Id. at 686.

       The district court explained why the state court decision under review was not

contrary to, nor an unreasonable application of, the two-part test established in Strickland,

and we will affirm substantially for the reasons set forth by the district court.

       The district court explained:

                       [R]eviewing [Johnson’s] explanation in light of the
               evidence adduced at trial leads the court to conclude that a
               reasonable juror could have found that [Johnson]
               constructively possessed the cocaine, even without
               considering the challenged drug courier profile evidence. The
               following evidence was introduced at trial: (1) Johnson
               admitted to traveling with the baby in the rental car; (2)
               Johnson possessed a key to the rental car; (3) two letters
               addressed to Johnson were found in the rental car: (4) a back-
               pack with additional diapers and other baby items was found
               in the rental car; (5) one clean diaper was found lying next to
               Johnson on the floor; (6) Johnson identified Chris Burroughs,
               a known drug dealer, as his attacker; (7) the apartment where
               Johnson was found was known to be frequented by Chris
               Burroughs; (8) Johnson was alone in the room with the baby
               when the police arrived; (9) 136 grams of cocaine, packaged
               in plastic bags, were found in the baby’s diaper, and there was
               a paper towel between the cocaine and the baby; and (1) the


                                                7
              cocaine was worth $27,000.

                     The facts recited above are in stark contrast to
[Johnson’s] version of what occurred. Initially, at the hospital, [Johnson] told police that
the baby was his daughter. Yet, later on, he redacted this statement, saying that “she was
like a daughter to him.” Indeed, his true relationship with the baby was never revealed.

                     Next, [Johnson] first told police that he was traveling
              from New Jersey to Maryland to visit a person named Charles
              Riley. Yet, [Johnson] did not know the name of the town
              where Riley lived, and the rental agreement found in
              [Johnson’s] rental car revealed that the car was rented in
              Mount Vernon, New York, not in New Jersey.

                     Finally, [Johnson] claimed that he went to the
              apartment because a person name “Chris,” paged him and told
              [Johnson] to meet him at the apartment. Upon his arrival,
              [Johnson] alleges Chris and other unknown attackers stole his
              wallet, taped him, broke his leg, shot him, and then hid
              $27,000 worth of cocaine in the baby’s diaper to get him in
              trouble with the police. [Johnson] offered no reason why
              Chris and the others wanted to get him in trouble with police.3

                     After considering all the record evidence, the Court
              concludes that the drug courier profile testimony was a
              limited portion of the State’s case-in-chief evidence. Even if
              the drug courier profile evidence had been objected to and
              excluded, the Court concludes the jury could reasonably have
              found that [Johnson] constructively possessed the cocaine.
              Therefore, [Johnson] has failed to demonstrate how trial
              counsel’s failure to object to the drug courier testimony
              prejudiced the outcome of his trial.

Johnson, 327 F. Supp.2d at 399-400. We agree with the district court’s analysis, and will



       3
         Moreover, we agree with the government that “it is largely self-evident that the
attackers would need only have to have deposited one of the two bags [of cocaine], or
some lesser amount in the same or a different situs, to inculpate Johnson.” Government
brief at 23.

                                              8
affirm substantially for the reasons set forth by the district court.4

                                       III. Conclusion.

       For the reasons set forth above, we will affirm the district court’s denial of

Johnson’s habeas petition.




       4
        Because we conclude that Johnson has not demonstrated that his counsel’s failure
to object to the drug courier profile evidence prejudiced his case, we need not decide
whether Johnson has sufficiently demonstrated that his counsel’s performance was
deficient under prong one of the Strickland test.

                                               9
