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Johnson v. Kelley

United States District Court, E.D. Arkansas, Pine Bluff Division

October 15, 2018

DANIEL CURTIS JOHNSON PETITIONER
v.
WENDY KELLEY, Director of the Arkansas Department of Correction RESPONDENT

          FINDINGS AND RECOMMENDATION

         INSTRUCTIONS

         The following proposed Findings and Recommendation have been sent to United States District Judge D.P. Marshall Jr. You may file written objections to all or part of this Recommendation. If you do so, those objections must: (1) specifically explain the factual and/or legal basis for your objection, and (2) be received by the Clerk of this Court within fourteen (14) days of this Recommendation. By not objecting, you may waive the right to appeal questions of fact.

         DISPOSITION

         The record reflects that petitioner Daniel Curtis Johnson (“Johnson”) was tried for the death of Vincent Stone (“Stone”), who was shot at or near a basketball court in a park in Blytheville, Arkansas. The Arkansas Supreme Court summarized some of the evidence as follows:

... Blytheville Police Officer, Carl Lee Treadway, testified that on the day of the incident, he responded to a 911 call that shots had been fired at Williams Park. Officer Treadway testified that he had driven through the park minutes before receiving the call and estimated that approximately 80 people were present, enjoying the park and playing basketball. The State called Jimmy Aldridge, Jr., and Chardrick Mitchell as witnesses. Both men testified that they were playing basketball at the park with Stone on the day of the incident and a large group of people were at the park. Aldridge and Mitchell also testified that after they finished their game and were leaving the basketball court with Stone, two men came up from behind Stone and shot Stone multiple times. Aldridge and Mitchell both identified Johnson at trial as one of the assailants.

See Johnson v. State, 2017 Ark. 106, 515 S.W.3d 116, 117 (2017). A jury convicted Johnson of first-degree murder and found that he used a firearm in the commission of the offense. He was sentenced to “life imprisonment and fifteen years' imprisonment for the firearm enhancement to run consecutively.” See Id.

         Johnson did not appeal his conviction. He did, though, file a motion for new trial following the discovery of a Facebook post by Jimmy Aldridge, Jr., (“Aldridge”).[1] The state trial court conducted a hearing on the motion, and the state Supreme Court summarized some of the evidence as follows:

... Johnson's sister, Latrice Johnson, testified that approximately two weeks after Johnson's trial, an anonymous person sent Latrice a Facebook post made by Aldridge regarding Stone's murder, which she shared with defense counsel. Latrice testified that the Facebook post was made on June 28, 2015, six days after the shooting, and she confirmed the Facebook post by checking Aldridge's Facebook page. The post stated in its entirety:
Real niggas cry! Got me crying like a baby! Lost my nigga right in front of me! Couldn't do shit!! It was to [sic] many people out there for nobody to see anything!! My nigga can't rest in peace until justice is served!! 6/22/15 real nigga holiday!!!
At the hearing, Aldridge testified that his Facebook post was consistent with his trial testimony regarding witnessing the shooting and in his identification of Johnson as the shooter. ...

See Id., 515 S.W.3d at 118-119. The state trial court found that Aldridge's Facebook post did not “in any fashion establish or suggest perjury on any material issue at trial” nor did the post constitute “persuasive impeachment evidence.” See Id. at 120. The state trial court therefore denied the motion.

         Johnson appealed the denial of his motion for new trial. The state Supreme Court found no reversible error and affirmed. The state Supreme Court adopted the reasoning of the state trial court and found that Aldridge's Facebook post “would not have impacted the outcome of [the] case.” See Id. at 121. The state Supreme Court additionally noted that although the post “could have possibly been used to attempt to impeach Aldridge, ” the post did not satisfy the standard for newly discovered evidence. See Id.

         Johnson did not thereafter seek post-conviction relief or otherwise mount a collateral attack upon his conviction. Specifically, he never filed a petition for post-conviction relief pursuant to Arkansas Rule of Criminal Procedure 37.

         Johnson began the case at bar by filing a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. 2254. A summary of his claims is not easy.[2] Liberally ...


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