JOHNSON v. STATE (2016)

On Application for Rehearing

ToForest Onesha Johnson has filed an application for rehearing and a brief in support of that application. See Rule 40, Ala. R.App. P. In those rehearing materials, which are voluminous, Johnson has not demonstrated that our judgment of affirmance, from which his rehearing is taken, was in error. See Johnson v. State, [Ms. CR–05–1805, August 14, 2015] ––– So.3d –––– (Ala.Crim.App.2007).

Johnson has raised certain issues, however, that warrant additional discussion. Each of those issues relates to this Court's opinion on original submission, which was issued on September 28, 2007, and which remanded the case to the trial court for an evidentiary hearing on certain claims, Johnson v. State, [Ms. CR–05–1805, Sept. 28, 2007] ––– So.3d –––– (Ala.Crim.App.2007).

First, Johnson points out that this Court's reference to Steve Saxon as “a State's witness” was erroneous. (Johnson's application for rehearing, pp. 18–19.) Indeed, this characterization of Saxon appears to have been incorrect. That error, however, does not entitle Johnson to any relief on application for rehearing.

Second, Johnson appears to be correct in his assertion that this Court's 2007 opinion erroneously stated that Johnson did not raise on appeal his allegations “challeng[ing] the trial judge's bias and lack of impartiality stemming from the trial judge's brother's employment in the sheriff's department.” (Johnson's application for rehearing, p. 19.) Johnson did in fact present arguments related to this claim in his original brief to this Court. This Court's 2007 opinion, however, included an alternative analysis addressing the underlying claim. Johnson therefore is not entitled to relief on this issue.

Third, Johnson appears to be correct in asserting that our 2007 opinion incorrectly stated that Johnson had failed to raise on appeal the following claims from his third amended petition: Claims VII, VIII, XIII, XV, and XX(17).¹ Those claims, in summary, are as follows:

— Claim VII alleges that Johnson's trial was so infected with prejudicial prosecutorial misconduct that he was deprived of due process;

— Claim VIII alleges that trial counsel's Batson 2 motion was improperly denied;

— Claim XIII alleges that the jury was permitted to consider an aggravating circumstance for which “no evidence was submitted at trial” (Johnson's rehearing application, p. 210);

— Claim XV alleges that “he was denied a fair trial due to the presence of the large number of uniformed officers throughout the trial” (Johnson's rehearing application, pp. 210–11); and

— Claim XX(17) alleges that “appellate counsel ineffectively and unreasonably raised the claim on appeal that the State violated Mr. Johnson's Due Process rights by advancing inconsistent theories at his co-defendant's trials” (Johnson's rehearing application, p. 214).

We have examined the arguments made by Johnson as to these claims. Initially, we note that these claims are, for the most part, duplicative of other claims raised by Johnson.³ Regardless, Johnson has not demonstrated that the trial court's summary dismissal of these claims was inappropriate.

Finally, Johnson asserts that the circuit court and this Court “failed to rule on [Claims XX(10) and XX(11) ] or address them in anyway [sic].” (Johnson's rehearing application, pp. 216–17.) Claims XX(10) and XX(11) are generic assertions that appellate counsel rendered ineffective assistance by raising, in the motion for a new trial and on appeal, claims of ineffective assistance of trial counsel. This Court, in its 2007 opinion, addressed several specific claims alleging ineffective assistance of appellate counsel. The generic assertions in Claims XX(10) and XX(11) are insufficiently pleaded and, moreover, are without merit.

The application for rehearing is overruled.

APPLICATION OVERRULED.

FOOTNOTES

1.  Johnson also alleges that, contrary to this Court's conclusion in its 2007 opinion, the following claims were raised on appeal: Claims XIX(E)(6), XIX(E)(11), XX(2), XX(4), XX(5), XX(7), and XXIV.Claims XIX(E)(6) and XX(5) were included in a perfunctory listing of claims that Johnson asserted on appeal, but he made no argument in regard to these specific claims. This perfunctory listing does not comply with Rule 28(a)(10), Ala. R.App. P., and those claims are deemed waived.As to claim XIX(E)(11), Johnson made a cursory argument at page 54 of his brief; that argument, however, does not comply with Rule 28(a)(10), Ala. R.App. P., and is therefore deemed waived.A claim similar to XXIV—challenging Alabama's manner of execution—is made on the pages Johnson directs us to examine, but that claim and claim XXIV are both without merit.As for the remaining claims—Claims XX(2), XX(4), and XX(7)—that Johnson says he argued on appeal, the pages he directs us to examine on rehearing do not, in fact, address those claims.

2.  Batson v. Kentucky, 476 U.S. 79 (1986).

3.  Johnson's third amended petition is 281 pages long and consists of 450 numbered paragraphs.

JOINER, Judge.

WINDOM, P.J., and WELCH, KELLUM, and BURKE, JJ., concur.