Metropolitan News-Enterprise


Wednesday, September 3, 2008


Page 1


Ninth Circuit Applies Strict Time Limit to Habeas Petitions


By STEVEN M. ELLIS, Staff Writer


A miscarriage of justice only excuses the untimely filing of a habeas corpus petition if the petitioner also claims to be innocent, a panel of the Ninth U.S. Circuit Court of Appeals ruled yesterday.

Rejecting LaMerle R. Johnson’s challenge to the revocation of his plea agreement to kidnapping and robbery charges after he recanted—but later reaffirmed—testimony in a separate murder trial in the face of alleged death threats by law enforcement officers, the court held that Johnson’s concession of guilt precluded consideration of his petition alleging only procedural violations.

Johnson was incarcerated and awaiting trial before the San Mateo Superior Court on charges of kidnap for ransom, robbery, assault with a deadly weapon and use of a firearm relating to his kidnapping of Ellis Foots when Johnson learned of a murder plot between two fellow inmates. Informing authorities, he entered into an agreement to plead guilty and serve a sentence of 17 years’ imprisonment in exchange for his testimony against the plotters.

Johnson initially complied, testifying at both plotters’ preliminary hearings, but he later recanted his testimony during the trial of one plotter after “law enforcement officers” employed at the jail where he was being housed allegedly beat him, threatened to place him in a cell with the plotters, and threatened to ensure he was labeled a snitch when he ultimately went to prison.

When the prosecutor learned of the threats, he convinced Johnson to explain what happened in open court and why Johnson had changed his testimony, and Johnson reaffirmed his initial trial testimony. Defense counsel moved to strike Johnson’s trial testimony as unreliable, but the court denied the motion after the prosecutor explained that “the system failed [Johnson] ultimately, because I’m responsible for any witness’ safety ultimately. And the fault is mine; not his.”

However, after the trial ended with a hung jury, the prosecutor moved to rescind Johnson’s plea agreement because Johnson had committed perjury when he recanted his trial testimony. Following the advice of counsel, Johnson did not oppose the motion, and he was tried and convicted in 1996, and sentenced to life in prison plus 11 years.

Johnson later learned that his own attorney had previously represented the second plotter against whom Johnson had testified only at the preliminary hearing, so Johnson filed a federal habeas petition in 2002 in the U.S. District Court for the Northern District of California challenging the plea agreement revocation and asserting ineffective assistance of counsel.

U.S. District Judge Jeffrey S. White granted the state’s motion to dismiss the petition as untimely under the Anti-Terrorism and Effective Death Penalty Act’s one-year statute of limitations, and rejected Johnson’s argument that the untimeliness should be excused under the miscarriage of justice exception set forth by the U.S. Supreme Court in Schlup v. Delo (1995) 513 U.S. 298.

In Schlup, a capital habeas case, the court excused the untimely filing of a petition where the petitioner argued a miscarriage of justice would occur in light of newly discovered evidence demonstrating actual innocence.

Pointing to the concurring opinion of Justices John Paul Stevens, Harry Blackmun and Sandra Day O’Connor in a previous case—Sawyer v. Whatley (1992) 505 U.S. 333—that “[w]hile the conviction of an innocent person may be the archetypal case of a manifest miscarriage of justice, it is not the only case,” Johnson argued that the miscarriage of justice exception applied in any case where the court lacks confidence in the proceedings.

But the Ninth Circuit panel, in an opinion by Judge Diarmuid F. O’Scannlain, affirmed White’s decision on appeal and rejected Johnson’s theory.

Noting that “the majority of the [Supreme] Court has not adopted this broader view, nor have any of our sister circuits,” O’Scannlain explained that Johnson’s concession of guilt was fatal.

“[T]he miscarriage of justice exception is limited to those extraordinary cases where the petitioner asserts his innocence and establishes that the court cannot have confidence in the contrary finding of guilt…,” he wrote. “A petitioner who asserts only procedural violations without claiming actual innocence fails to meet this standard.”

Judges Michael Daly Hawkins and M. Margaret McKeown joined O’Scannlain in his opinion.

The case is Johnson v. Knowles, No. 07-15221.


Copyright 2008, Metropolitan News Company