The opinion of the court was delivered by: J. Leon Holmes United States District Judge
Stacey Eugene Johnson was convicted of capital murder and sentenced to death. He petitions this Court for a writ of habeas corpus.
The body of Carol Heath was discovered in her living room at approximately 6:45 on the morning of April 2, 1993, at her residence in DeQueen, Arkansas. Her throat had been cut to the bone and one-fourth of an inch into the spine. The strap muscles on both sides of her neck were completely severed. The trachea was cut to the carotid arteries and jugular veins were cut on both the left and the right sides. There was evidence of strangulation. Heath had suffered abrasions, contusions, or cuts on her right ear, both cheeks, the bridge of her nose, her lips, her mandible, her left eyebrow, and her forehead. The injuries to her head were blunt force injuries. Her tongue had bite marks that would have been caused during the strangulation or during the blunt force injuries. Heath had suffered abrasions, contusions, and cuts to her arms and legs, as though she had tried to defend herself in a fight. Both breasts had bite marks. A small tear was found in the vaginal area, which could have been caused by insertion of a foreign object or intercourse.*fn1 The body was naked except for a tee shirt that had been formed into a wad and placed over her throat. A condom package was found in the bathroom, along with a douche bottle. A puddle of clear liquid was found on the floor around the vaginal area of Heath's body.
On the morning of April 2, Rose Cassady, who was a friend of Heath and whose brother was married to Heath's sister, found Heath's body. Cassady screamed, went across the street to call the police, and returned to see whether Heath's children, six-year-old Ashley and two-year-old Jonathan, were home. The children were in the bedroom looking out the window when Cassady returned. When the police arrived, they removed the children through the window rather than carrying them through the living room where their mother's body was lying. Ashley told Cassady, "a black man broke in last night."
A few hours later, Ashley was interviewed by an investigator from the Arkansas State Police, Hayes McWhirter. Ashley told McWhirter that she and her mother had been on the couch when someone knocked on the door. The person who knocked on the door was a black male who used "a girl sounding name." Ashley told McWhirter that the black male had on "a black hat with something hanging down the back"; he had a green shirt and sweater; he said that he had just got out of jail; and he was mad at Ashley's mother for dating Branson Ramsey.*fn2 Ashley also told McWhirter that she saw her mother and this black male fighting. She said that she saw the black male with a knife beside her mother while her mother was on the floor bleeding.
After this initial statement, McWhirter showed Ashley a photo line-up consisting of photographs of seven black males. Ashley picked Johnson out of the photo line-up twice.
Johnson had been living in Albuquerque, New Mexico. He came to DeQueen, Arkansas, in January 1993 to attend his father's funeral. He remained in DeQueen after the funeral and made the acquaintance of Branson Ramsey. On one occasion he went with Ramsey to Heath's apartment to attend a party and remained after Ramsey had left. According to the testimony of Shawnda Flowers Helms, Johnson asked her and Heath if they would transport drugs for him and if they would date him. They refused and told him that they did not date black men. Later, at In Your Ear, Johnson again asked them to transport drugs for him and to date him. They again refused. According to Helms, Johnson appeared to be angry at their refusal on both of those occasions.
While he was in DeQueen, Johnson was arrested and charged with being a felon in possession of a firearm. He was incarcerated in the Sevier County Jail. While he was incarcerated, he had a conversation with Bobby Ray Wilkinson, another inmate who was acquainted with Heath. Johnson told Wilkinson that he had "f***ed [Carol Heath] a time or two." Wilkinson did not believe Johnson, so he asked Johnson to describe the inside of her apartment, which Johnson did. Wilkinson testified that Johnson "said that he was going to go see her and he was going to f*** her again when he got out."
On April 1, 1993, Johnson's girlfriend wired money from Albuquerque to DeQueen to pay for his bail bond. He was released from the county jail at 2:00 p.m. on April 1. He was the only black male released from the Sevier County Jail between March 14, 1993, and April 2, 1993, when Heath's body was found.
After his release, Johnson went to his stepmother's home. She told him that he could not stay there. Johnson asked his stepmother for a tee shirt, and she gave him a tee shirt that had belonged to his father. He left for a while in the evening, came back, and told her that he had found a place to stay with a white girl who had two little kids and worked at the bank.*fn3 He then left wearing black jeans, a black "do rag" or something of that sort on his head, a turquoise or green shirt, and a jacket.
On April 5, 1993, a local citizen found Heath's purse at a roadside park between DeQueen and Horatio. He did not recognize the name in the purse, but his wife did, so he called the sheriff's department and went back to the roadside park with a police investigator, who found a green pullover shirt, a white tee shirt, a towel, and some other articles of clothing. Johnson's stepmother testified that the white tee shirt and the green shirt looked like the ones that she had given Johnson. A partially smoked cigarette was found in the pocket of the shirt.
Johnson was arrested in Albuquerque on April 14, 1993, following a traffic stop. He first gave a false identification and used a Jamaican accent. After it became apparent that the identification was false, Johnson was placed under arrest. According to an officer who participated in the arrest, Johnson offered the officers $5,000 each if they would let him go. Johnson told the officers that he had killed somebody in Arkansas and, if he were sent back to Arkansas, they would kill him.
Hair that appeared to come from an African-American was found in Heath's apartment. Testing showed that the DNA in the hair was consistent with Johnson's DNA. The initial testing concluded that the DNA pattern would occur with a frequency of 1 in every 250 African-Americans. The hair and other items were retested over the years as DNA testing became increasingly more precise. At the second trial, the testimony established that the DNA pattern found on the hair would occur among 1 in every 720 million African-Americans. Saliva on the partially smoked cigarette found in the pocket of the shirt at the roadside park also was consistent with Stacey Johnson's DNA. The statistical frequency of the DNA pattern on the saliva on the cigarette butt was approximately 1 in every 28 million African-Americans. The green shirt found at the roadside park had blood the DNA of which was consistent with Heath's DNA. The frequency with which that DNA pattern would appear is approximately 1 in 380 million Caucasians, 1 in 6.4 billion African-Americans, and 1 in 390 million Western Hispanics.
II. THE PROCEDURAL HISTORY
Johnson's first trial was conducted in DeQueen, the county seat of Sevier County, in September 1994. Ashley Heath was seven years old at that time. The court conducted a hearing to determine whether she was competent to testify, but when no one could coax her into the courtroom during the hearing, the judge ruled that she was not competent. The court permitted McWhirter to read her statement to the jury and to testify that she had identified Johnson in the photo line-up. Johnson was convicted of capital murder and sentenced to death. On appeal, the Supreme Court of Arkansas held, among other things, that Ashley's statement to McWhirter was an excited utterance that was properly admitted into evidence as an exception to the hearsay rule and that permitting the introduction of that statement did not violate the Confrontation Clause. However, the court held that the identification in the photo line-up was not an excited utterance and should not have been admitted. Because it was error to allow McWhirter to testify that Ashley identified Johnson in the photo line-up when Ashley did not testify, the court reversed for a new trial. Johnson v. State, 326 Ark. 430, 934 S.W.2d 179 (1996) ("Johnson I").
On remand, Johnson moved for a change of venue due to the extensive publicity that had surrounded his first trial. He requested that the trial be moved to Little River County. The trial judge granted the motion for a change of venue but moved the trial to Pike County, rather than to Little River County. Johnson objected to moving the trial to Pike County because black persons form a much smaller percentage of the population in that county.
By the time of the second trial, Ashley was ten years old. She took the stand during a competency hearing, was found to be competent to testify, and then testified at the trial. McWhirter again read her statement to the jury and again told the jury that she identified Johnson in the photo line-up. Johnson was again convicted and again sentenced to death. The Supreme Court of Arkansas affirmed. Johnson v. State, 342 Ark. 186, 27 S.W.3d 405 (2000) ("Johnson II").
After the supreme court affirmed on direct appeal, Johnson filed a timely motion for post-conviction relief pursuant to Rule 37 of the Arkansas Rules of Criminal Procedure. Johnson also filed a motion for new testing and retesting of DNA evidence pursuant to Act 1780 of 2001, which is codified at Ark. Code Ann. §§ 16-112-201 to -207. The trial court denied the motion for testing and retesting of DNA evidence, as well as the petition for post-conviction relief. The Supreme Court of Arkansas affirmed in part and reversed in part. Johnson v. State, 356 Ark. 534, 157 S.W.3d 151 (2004) ("Johnson III"). The supreme court reversed with respect to the denial of retesting on the apparently African-American hair found on Heath's body but affirmed on all other points.
On remand, the trial court held that the hair had already been retested and therefore refused to order additional retesting. On appeal, the supreme court affirmed, noting that it had overlooked the fact that the retesting had already occurred when it wrote the opinion in Johnson III. Johnson v. State, 366 Ark. 390, __ S.W.3d __, 2006 WL 1349052 (May 18, 2006) ("Johnson IV"). Having exhausted his remedies in state court, Johnson now petitions this Court for a writ of habeas corpus. He has raised the following claims for relief:
1. Johnson's rights under the Sixth and Fourteenth Amendments -- his right to present a defense and his right of access to exculpatory evidence -- consisting of his rights of due process, compulsory process and confrontation -- were violated by the decision to deprive him of access to significant evidence impeaching the child witness.
2. Johnson's Sixth Amendment right to effective assistance of counsel was violated by failure to properly object to introduction of an oral confession and which also included supposed admissions to other homicides and drugs. The inclusion of this material also violated his Fifth and Fourteenth Amendment rights.
3. Johnson's right of confrontation was violated by the admission of out of court statements by Ashley Heath and ineffectiveness of counsel in failing to properly argue the point.
4. Johnson's right to present a defense was violated by the denial of the right to present inculpatory evidence about an alternative suspect known to have had a close relationship with the deceased. In the event there is deemed a failure to properly present, this was an instance of ineffective counsel.
5. Johnson's right to present a defense was violated by denial of access to records involving the deceased and by trial counsel's ineffectiveness in failing to seek the records. Johnson is entitled to access to the records in order to pursue the claim.
6. Johnson's rights under the Sixth, Eighth, and Fourteenth Amendments were violated by Arkansas's refusal to permit DNA testing.
7. The introduction of victim impact evidence, when the Arkansas statute went into effect after the homicide in question, violated the constitutional prohibition against ex post facto legislation.
8. The use of the aggravating circumstance of cruel and depraved violated the Eighth Amendment.
9. Johnson received an unfair trial, in violation of the Sixth Amendment cross-section requirement and Fourteenth Amendment due process requirements, by the court sending the trial to Pike County, instead of Little River County.
10. The introduction of victim impact evidence violated Johnson's Eighth and Fourteenth Amendment rights.
11. The victim impact statute violates the Sixth Amendment right to a jury trial because the jury is not required to make a finding concerning victim impact.
III. THE AUTHORITY OF THIS COURT IN ITS REVIEW OF JOHNSON'S CASE
Section 2254 of Title 28 of the U.S. Code permits a prisoner in state custody to petition a federal court for a writ of habeas corpus "only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a) (2000). Section 2254(d)(1) provides:
(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 . . . .
The Supreme Court explained in Williams v. Taylor that to obtain federal habeas relief, a petitioner must first demonstrate that his case satisfies the condition set by § 2254(d)(1):
[Section] 2254(d)(1) places a new constraint on the power of a federal habeas court to grant a state prisoner's application for a writ of habeas corpus with respect to claims adjudicated on the merits in state court. Under § 2254(d)(1), the writ may issue only if one of the following two conditions is satisfied-the state-court adjudication resulted in a decision that (1) "was contrary to . . . clearly established Federal law, as determined by the Supreme Court of the United States," or (2) "involved an unreasonable application of . . . clearly established Federal law, as determined by the Supreme Court of the United States." Under the "contrary to" clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case. 529 U.S. 362, 412-13, 120 S.Ct. 1495, 1523, 146 L.Ed. 2d 389 (2000). The purpose of § 2254(d) as amended by the Antiterrorism and Effective Death Penalty Act of 1996 is to limit the scope of federal court review "in order to effect the intent of Congress to expedite habeas proceedings with appropriate deference to state court determinations." Whitmore v. Kemna, 213 F.3d 431, 433 (8th Cir. 2000).
A state-court "decision will be viewed as 'contrary to' clearly established federal law if the state court has applied a rule that directly contradicts Supreme Court precedent or has reached a result opposite to a result reached by the Supreme Court on 'materially indistinguishable' facts." Kinder v. Bowersox, 272 F.3d 532, 537-38 (8th Cir. 2001). A state-court decision unreasonably applies clearly established federal law "if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the [petitioner's] case." Williams, 529 U.S. at 413, 120 S.Ct. at 1523. "Stated simply, a federal habeas court making the 'unreasonable application' inquiry should ask whether the state court's application of clearly established federal law was objectively unreasonable." Id. at 409, 120 S.Ct. at 1521. "[W]e must remember that unreasonable is not the same as incorrect." Kinder, 272 F.3d at 538 (citing Penry v. Johnson, 532 U.S. 782, 793, 121 S.Ct. 1910, 1918, 150 L.Ed. 2d 9 (2001)). "The state court's application might be erroneous, in our 'independent judgment,' yet not 'unreasonable.'" Id. (quoting Williams, 529 U.S. at 411, 120 S.Ct. at 1522).
A habeas petitioner may also seek relief on the ground that the state court made an unreasonable determination of the facts. 28 U.S.C. § 2254(d)(2). The state court's findings of fact are presumed to be correct. Id. at § 2254(e)(1). The petitioner has the burden of rebutting that presumption by clear and convincing evidence. Id.
Before bringing his claims to this Court, a petitioner must have presented his claims in state court. Baldwin v. Reese, 541 U.S. 27, 29, 124 S.Ct. 1347, 1349, 158 L.Ed. 2d 64 (2004). The Eighth Circuit has explained:
"A prisoner seeking a writ of habeas corpus from a federal court must first fairly present his claims to the state courts in order to meet the exhaustion requirement of 28 U.S.C. § 2254(b)." We have held repeatedly that a claim has not been fairly presented to the state courts unless the same factual grounds and legal theories asserted in the prisoner's federal habeas petition have been properly raised in the prisoner's state court proceedings. We have also held that a claim is considered exhausted "when the petitioner has afforded the highest state court a fair opportunity to rule on the factual and theoretical substance of his claim."
Krimmel v. Hopkins, 56 F.3d 873, 875-76 (8th Cir. 1995) (citing Forest v. Delo, 52 F.3d 716, 719 (8th Cir. 1995); Keithley v. Hopkins, 43 F.3d 1216, 1217 (8th Cir. 1995); Ashker v. Leapley, 5 F.3d 1178, 1179 (8th Cir. 1993)) (citations omitted). "In order to fairly present a federal claim to the state courts, the petitioner must have referred to '"a specific federal constitutional right, a particular constitutional provision, a federal constitutional case, or a state case raising a pertinent federal constitutional issue" in a claim before the state courts.'" McCall v. Benson, 114 F.3d 754, 757 (8th Cir. 1997) (quoting Myre v. Iowa, 53 F.3d 199, 200-01 (8th Cir. 1995) (quoting Kelly v. Trickey, 844 F.2d 557, 558 (8th Cir. 1988))).
Even when a petitioner has met the exhaustion requirement, federal law may prevent a federal court from considering the federal habeas claim if it has been procedurally defaulted. "[A] habeas petitioner who has failed to meet the State's procedural requirements for presenting his federal claims has deprived the state courts of an opportunity to address those claims in the first instance." Coleman v. Thompson, 501 U.S. 722, 732, 111 S.Ct. 2546, 2555, 115 L.Ed. 2d 640 (1991). A state court procedural default can occur at any level of state-court review: at trial, on direct appeal, or in the course of state post-conviction proceedings. Kilmartin v. Kemna, 253 F.3d 1087, 1088 (8th Cir. 2001). Another judge of this Court has explained:
A petitioner's claim may also be procedurally defaulted for failure to present the claim to the state courts entirely. "[W]here a federal habeas petitioner raises a claim which has never been presented in any state forum, a federal court may properly determine whether the claim has been procedurally defaulted under state law, such that a remedy in state court is unavailable . . . ." Harris v. Reed, 489 U.S. 255, 268-270, 109 S.Ct. 1038, 103 L.Ed. 2d 308 (1989) (O'Connor, J., concurring); 28 U.S.C. § 2254(c). In other words, if the petitioner "failed to exhaust state remedies and the [state] court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred[,]" for purposes of federal habeas review, the petitioner's claim ...