United States District Court, S.D. Indiana, Indianapolis Division
HERMAN P. JOHNSON, Petitioner,
DUSHAN ZATECKY, Respondent.
ENTRY DISCUSSING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING CERTIFICATE OF APPEALABILITY
SARAH EVANS BARKER, District Judge.
A jury convicted Herman Johnson in 2009 of Class A child molesting and of Class C child molesting. The same jury returned a not guilty verdict as to a third charge, criminal confinement. The victim of his crimes is his niece, who at all relevant times was a minor. Johnson is now serving the executed portion of the 45-year sentence imposed for these offenses. He now seeks a writ of habeas corpus, contending that his convictions are tainted by constitutional error.
Having considered the pleadings and the expanded record, and being duly advised, the Court finds for the reasons explained in this Entry that Johnson's habeas petition must be denied. The Court also finds that no certificate of appealability should issue.
The Petition for Writ of Habeas Corpus
Johnson's convictions were affirmed on appeal in Johnson v. State, 925 N.E.2d 509 (Ind. Ct.App. Apr. 23, 2010)( Johnson I ), wherein his challenges to the sufficiency of the evidence and argument based on the trial court's rejection of his challenge based on Batson v. Kentucky, 476 U.S. 79, 89 (1986). The trial court then denied Johnson's petition for post-conviction relief. The denial of post-conviction relief was affirmed on appeal in Johnson v. State, 985 N.E.2d 1149 (Ind.Ct.App. Apr. 16, 2013)( Johnson II ).
An Amended Information was filed in Johnson's case on June 22, 2009. The language of the charges on which Johnson was found guilty was accurately described in Johnson II:
With respect to child molesting as a class A felony, Count I alleged that Johnson "being at least twenty-one (21) years of age, did perform or submit to deviate sexual conduct, an act involving a sex organ, that is: vagina of [E.B.] and the mouth of [Johnson], with [E.B.], a child who was then under the age of fourteen (14) years, that is: ten (10) years of age." Appellant's Appendix at 37. Ind.Code § 35-42-4-3 provides that "[a] person who, with a child under fourteen (14) years of age, performs or submits to sexual intercourse or deviate sexual conduct commits child molesting, a Class B felony. However, the offense is a Class A felony if... it is committed by a person at least twenty-one (21) years of age." With respect to child molesting as a class C felony, Count II alleged that Johnson "did perform or submit to any fondling or touching with [E.B.], a child who was then under the age of fourteen (14) years, that is: ten (10) years of age, with intent to arouse or satisfy the sexual desires of [E.B.] and/or the sexual desires of [Johnson]." Id. at 37-38. Ind.Code § 35-42-4-3 provides that "[a] person who, with a child under fourteen (14) years of age, performs or submits to any fondling or touching, of either the child or the older person, with intent to arouse or to satisfy the sexual desires of either the child or the older person, commits child molesting, a Class C felony."
Johnson II, at *5 n.4.
It is noted in Jones v. Butler, 2015 WL 430436, at *1 (7th Cir. Feb. 3, 2015), that "[i]n § 2254 proceedings, federal courts are foreclosed from fact-finding. We therefore defer to the findings of the [state] court, which have not been challenged and are presumed to be correct unless rebutted by clear and convincing evidence." (citing 28 U.S.C. § 2254(e)(1) and Harris v. Thompson, 698 F.3d 609, 613 (7th Cir. 2012)).
Johnson was forty-five years old and lived in Indianapolis. One day he went to the movies with his ten-year-old niece E.B. and his girlfriend Wanda. Afterward the three returned to Johnson's house. E.B. and Johnson began playing chess. Wanda left after ten or fifteen minutes. E.B. and Johnson then decided to play a card game. E.B. went to the back room to look for a deck of cards, and Johnson followed her.
While they were in the back room, Johnson lifted E.B. from behind, pulled up her shirt and bra, and touched her breast. Wanda soon returned. Johnson instructed E.B. not to tell anyone that he had picked her up. E.B. came to the front of the house to see Wanda. E.B. did not tell her what had happened. Wanda left again five minutes later.
E.B. continued to look for cards. She could not find any and returned to the back room. Johnson picked E.B. up again and touched her vagina over her clothing. E.B. then went to another room to resume her search. She again found no cards and returned to the back room. Johnson came in and placed E.B. on the bed. Johnson pulled down her pants and underwear, inserted his finger into her vagina, and moved his finger "[i]n and out." Tr. p. 26. E.B. told Johnson that he was hurting her, but Johnson said he did not care. E.B. started kicking. Johnson pinned her down and began licking the inside of her vagina.
Soon E.B.'s mom called, and E.B. spoke to her briefly on the phone. At some point E.B. and Johnson left and went to Safeway. They also stopped at a laundromat so E.B. could go to the bathroom. Johnson gave E.B. his cell phone before she went in. E.B. called her mom while in the restroom and told her what Johnson had done. E.B. and Johnson then returned to the house, and E.B.'s mother was there when they arrived. E.B. left with her mother. They picked up E.B.'s father, and E.B. explained to her parents what had happened. Authorities were ultimately notified.
Johnson I, at *1.
In Johnson II, Johnson argued that he had been denied the effective assistance of counsel at trial, presented various free-standing claims, and renewed the claims which had been rejected in Johnson I.
Johnson's petition for writ of habeas corpus presents the following claims:
(1) he was denied the effective assistance of counsel at trial;
(2) there was insufficient evidence to support the verdicts;
(3) he was denied his right to a fast and speedy trial;
(4) the prosecutor used peremptory challenges in a racially discriminatory manner;
(5) there was sentencing error;
(6) there is newly discovered evidence;
(7) the State committed error in responding to the petition for ...