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Malcolm Rent JOHNSON





Classification: Murderer
Characteristics: Serial rapist
Number of victims: 1
Date of murder: October 27, 1981
Date of arrest: Same day
Date of birth: January 25, 1958
Victim profile: Ura Alma Thompson (female, 76)
Method of murder: Asphyxiation
Location: Oklahoma City, Oklahoma, USA
Status: Executed by lethal injection in Oklahoma on January 6, 2000


On October 27, 1981, Frank Thompson found his aunt, 76 year old Ura Alma Thompson, deceased on the floor of her Oklahoma City apartment.

Following an autopsy, the medical examiner found evidence of forcible sexual intercourse before death. He concluded that although Thompson was not strangled, she died of asphyxiation either because of pressure on her chest during the intercourse or because her assailant covered her mouth and nose.

On October 27, 1981, police arrested Johnson on an unrelated weapons charge at his apartment, where they seized several items later identified as belonging to Thompson, including furs, a typewriter, watch, key rings, cigarette case, hand mirror, rings, a purse and other valuables.

Johnson denied knowledge of the homicide, but when told that semen found in Thompson's body matched his own, he reportedly responded, "you couldn't have found my semen in her, I didn't come."

State Police chemist Joyce Gilchrist testified that semen found on the bed coverings in Thompson's apartment matched Johnson's blood type. She also testified that several strands of hair found at the scene of the crime were "consistent microscopically" with petitioner's hair. A neighbor testified that Johnson was near the scene at the time of the murders.

The defense did not present any witnesses. Johnson had prior convictions for two rapes, two armed robberies, and a burglary. He was on parole from Illinois at the time of the murder.

Following the execution, Gilcrist was fired from the State Lab and retests on the evidence in Johnson's case showed discrepancies.

The Oklahoma Court of Criminal Appeals set a Jan. 6 execution date for a man convicted of killing a 76-year-old Oklahoma City woman in 1981.

In November, the U.S. Supreme Court rejected Malcolm Rent Johnson's latest appeal of his death sentence. After his appeal was rejected, Oklahoma Attorney General Drew Edmondson asked the Court of Criminal Appeals to set an execution date.

Johnson, then 23, was convicted of the October 1981 death of Ura Alma Thompson. She was beaten, raped, then suffocated in her home.

Edmondson said police found Mrs. Thompson's furs, a typewriter, watch, key rings, cigarette case, hand mirror, rings, a purse and other valuables at Johnson's apartment. Hair and semen from the crime scene matched samples taken from Johnson.

Johnson had criminal history that included four separate rape convictions and three separate burglary convictions, a robbery conviction and a weapons violation. He was on parole from Illinois at the time of Ura's murder. "I appreciate the court's speedy response to our application," Edmondson said. "I see no obstacle to the carrying out of Johnson's execution on Jan. 6." In December, Johnson opted not to go before the state clemency board to try to have his sentence commuted.


Death Penalty Institute of Oklahoma

Malcolm Johnson - Executed January 6, 2000

Malcolm Rent Johnson, 41, was executed shortly after midnight on Thursday, January 6, 2000. He was pronounced dead at 12:13am.

Johnson, an Oklahoma County death row inmate, was sentenced to death for the 1981 murder of Ura Alma Thompson, 76.

Thompson was found dead in her home in Oklahoma City on October 27, 1981. She had been raped and suffocated. Johnson, who had been on parole from Illinois for two 1977 rape convictions, had moved to Oklahoma City earlier in 1981.

Johnson was the 20th man executed by Oklahoma since it reinstated the death penalty in 1977. He was the third African-American to be executed by Oklahoma in a five-week period.

He was also the 599th person to be executed in the US since its return to capital punishment in 1976. Prayer vigils and protests were held across the state on the evening of January 5.


Oklahoma Carries Out First U.S. Execution of Year

APBNews Online

January 6, 2000

McALESTER, Okla. (AP) -- A man who raped and suffocated a 76-year-old woman in her Oklahoma City apartment in 1981 was executed by injection early today, becoming the first person put to death in the United States this year. Malcolm Rent Johnson, 41, was pronounced dead at 12:13 a.m.

Johnson had been on death row for almost 18 years after being convicted of killing Ura Alma Thompson. Oklahoma County District Attorney Bob Macy, who prosecuted Johnson, said Johnson was identified in several rapes or attempted rapes involving elderly women.

He said Johnson would follow elderly women to their homes and brutalize them. Last month, Johnson opted not to go before the state clemency board to try to have his sentence commuted.


Dead Man Talking; Trial Questions Nag

Shawnee Online

(Part 1 of 2 part series)

OKLAHOMA CITY (AP) -- At his trial for rape and murder, during 18 years on death row, on the night they strapped him to a gurney and executed him, Malcolm Rent Johnson told anyone who'd listen that he was innocent. Even the prison chaplain, who'd heard the last confessions of several condemned men, hadn't heard that statement.

State Attorney General Drew Edmondson says Johnson deserved to die. Even if police chemist Joyce Gilchrist did give false testimony against Johnson -- as former colleagues have suggested -- there was other "overwhelming" evidence which proved Johnson's guilt, Edmondson says.

But a review by The Associated Press of Johnson's 1982 trial transcripts shows that "overwhelming" evidence -- including a statement made by Johnson and another made by a witness -- was inconclusive even then. The transcripts also paint a vivid picture of what transpired in the courtroom where 23-year-old Johnson was convicted and sentenced to death.

A federal grand jury convened this month to investigate Johnson's execution and nine others involving testimony by Gilchrist, who was recently fired. Whether Johnson was telling the truth is not the issue, said several legal experts who've reviewed his case.

The real issue is whether he received a fair trial. Johnson was executed January 6, 2,000. "I'm going to heaven on a midnight train," he told those assembled to watch him die.

Malcolm Rent Johnson was in trouble most of his life. As an adolescent, he ran away from this father's home in Oklahoma City to be with his divorced mother in Illinois. In Chicago, at age 15, he was arrested for carrying a gun.

At 19, he pleaded guilty to raping and robbing two women and was sentenced to state prison. Illinois parole officials allowed Johnson to move to Oklahoma City in 1981 to be near family. Five months later, police came to his apartment to arrest him on suspicion of violating his parole by carrying a handgun.

At the time, Oklahoma City Police Department chemist Joyce Gilchrist had been on the job 18 months. Already she was well-liked by prosecutors for her commanding courtroom presence and her forceful testimony about some of the most equivocal forensic evidence -- hair and fibers.

A few years later, Gilchrist was attacked by colleagues for definitively matching hair samples, something forensic experts say is impossible without DNA testing, which wasn't readily available then. Still, she served 21 years in the police lab before Police Chief M.T. Berry fired her this September.

Her mistaken testimony helped send two innocent men to prison and another guiltless man to death row. All have been released.

The FBI declined comment on its separate probe involving the federal grand jury. Gilchrist's attorney, Melvin Hall, Gilchrist's lawyer, said his client also declined comment. Attorney Doug Parr sued Oklahoma City earlier this year seeking independent analysis of forensic evidence used to convict Johnson. In August,

The Associated Press obtained an internal police department memo that said some evidence used to prosecute Johnson did not exist.


Oklahoma Beats Out Texas for First Execution of the Century

Death Row 2000

January 7, 2000

Few people stayed to watch history in the making when Oklahoma carried out the first execution of the 21st Century on January 6.

Malcolm Rent Johnson, who terrorized a Midwest community for years before moving to Oklahoma City where he raped and murdered 76-year-old Ura Alma Thompson, took the last minutes of his life to apologize for the murder. Cynthia Ury and other family members of his victims waited nearly 20 years to hear Johnson say: "I apologize for everyone I hurt."

When the U.S. Supreme Court rejected Johnson's appeal in November, the Oklahoma Criminal Court of Appeals was quick to set the execution for Jan. 6. The higher court refused Johnson's last-minute appeals - and just before midnight - executioners strapped the shaky 42-year-old inmate to the state's death chamber gurney.

Johnson was sentenced to death for beating, raping and then suffocating to death Thompson in her home. After the October 1981 murder, police found the victim's furs, a typewriter, watch, cigarette case, rings, a purse and other valuables in Johnson's apartment.

Hair and semen samples taken from the 23-year-old parolee from Illinois matched crime scene evidence. He had a criminal history that included four rapes, three burglaries and one robbery and weapons violation.

Johnson became the 20th person executed in Oklahoma since the reinstatement of the death penalty in 1977 and the 103rd executed inmate in the history of the state. In a last statement, Johnson said he was "going to heaven on a midnight train."

Texas spokesperson Larry Fitzgerald said of Johnson's execution, "Well, we got the last one of the century, but Oklahoma beat us out today with the first one of the new millenium."


Testimony Doubted in Execution Case

By Deborah Hastings - AP News

August 29, 2001

A man executed in Oklahoma last year was placed at the murder scene by the testimony of now-disgraced police chemist Joyce Gilchrist, but a police department memo obtained by The Associated Press says some of the scientific evidence she swore to does not exist.

The July 31 memo by a fellow lab scientist for the Oklahoma City Police Department refers to the case of Malcolm Rent Johnson, who was executed on Jan. 6, 2000, after being convicted in 1982 of rape and murder. Johnson, who had served time for two previous rapes, insisted he was innocent.

At Johnson's trial, Gilchrist testified that six samples taken from the murder victim's bedroom showed semen consistent with his blood type. But a July 30 re-examination of those slides showed ``spermatozoa is not present,'' says the memo signed by chemist Laura Schile.

Schile resigned Aug. 2 from the embattled forensics lab, citing a hostile work environment. She names the lab's three other scientists as agreeing that sperm is not present.

While the memo does not exonerate Johnson, it marks the first time legal questions have been raised about Gilchrist's testimony in an execution case. The memo also noted that Gilchrist's testimony had been criticized previously.

Two appellate courts have ruled Gilchrist gave false testimony about semen evidence in the 1992 rape and murder trial of Alfred Brian Mitchell, whose death sentence was overturned earlier this month because of what one court called her "untrue'' testimony. "There are now two cases where the results stated in the (lab) report and testified to by Joyce Gilchrist contradict independent expert re-examination of the actual physical evidence,'' Schile wrote.

Prosecutors said there was sufficient evidence separate from Gilchrist's testimony to convict Johnson. But Oklahoma County Chief Public Defender Robert Ravitz, who represented Johnson at trial, disagrees. "It really calls into question whether the state of Oklahoma executed an innocent person,'' he said Tuesday.

Problems with Gilchrist's testimony in other cases have led to the release of three inmates who served long sentences, including one on death row. Based on a preliminary review, authorities previously said there was no taint in the 11 cases where prisoners were put to death. Gilchrist's attorney did not immediately return calls for comment. The chemist has previously denied any wrongdoing.

Ura Alma Thompson, 76, was found suffocated in her apartment on Oct. 27, 1981. There were no witnesses to the crime, and no fingerprints matching Johnson's were found.

He was arrested after officers went to his home to question him about an unrelated parole violation and noticed items belonging to the victim.

A search led to the discovery of her apartment key in his nightstand. He contended all the items were given to him by a third party.

Gilchrist told jurors that semen stains on the woman's bedspread and pillow case matched Johnson's blood type, which constituted the bulk of evidence used to tie Johnson to rape.

The only other evidence stained by semen consistent with his blood type was a knee-high stocking, Gilchrist testified. That stocking has not been retested. A vaginal swab contained sperm, but not enough to test, Gilchrist told jurors.

Gilchrist also testified that hair fragments matched Johnson's hair and that fibers matched a blue cotton shirt he owned.

Johnson's trial marked the first time she had testified about fiber analysis. DNA analysis was not available at that time, and the court denied the defense's request for funds to hire its own forensics expert. Johnson's attorney argued during trial that blue cotton shirts were so ubiquitious that the fiber could not definitively be linked to Johnson.

Schile refused comment Tuesday on the memo contradicting Gilchrist's testimony, which she addressed to Richard Smith of the Oklahoma City Municipal Counselor's Office. Kyla Marshall, one of the chemists named by Schile, confirmed that when the slides purported to contain sperm were retested, they revealed only a few fibers from the victim's bedspread and pillow case. Sperm does not deteriorate for decades, she said.

Richard Wintory, a spokesman for the district attorney's office, said Tuesday that he still does not doubt Johnson's guilt. "The evidence against Malcolm Rent Johnson is absolutely, uncontestably, overwhelming he done it, done it, done it,'' Wintory said. "This suggestion that an innocent guy was executed is not true about Malcolm Rent Johnson.'' "I am confident he is guilty of murder,'' Oklahoma Attorney General Drew Edmondson said. "He was convicted and sentenced to death and there is ample evidence supporting without consideration of forensic testimony.''

Gov. Frank Keating's office said he agreed the execution was appropriate. Oklahoma City Police Chief M.T. Berry declined comment except to say that his department was willing to have evidence from the Johnson case retested by an independent lab.

Gilchrist was suspended with pay earlier this year after the FBI, which reviewed eight of her cases, concluded she had misidentified evidence or made other serious mistakes in six of them. Hearings began last week to determine whether she should be fired.

In the Mitchell case, a lower federal court ruled Gilchrist had knowingly given false testimony and that prosecutors withheld exculpatory evidence from defense lawyers. That court still upheld the death penalty, but the 10th U.S. Circuit Court of Appeals overturned it Aug. 13, saying, ``We simply cannot be confident that the jury would have returned the same sentence had no rape and sodomy evidence been presented to it.''

Doug Parr, who serves on the board of the Oklahoma Defense Lawyers Association, filed suit last month against the Oklahoma City Police Department, claiming it is illegally refusing to release public records pertaining to Johnson's case. Schile re-examined the slides after a visit from Parr.

On Tuesday, Parr filed court papers seeking Schile's memo. "It is yet another example that Ms. Gilchrist is apparently willing to lie and present false evidence in order to support prosecutors' efforts to convict persons in serious felony cases in Oklahoma County,'' he said. "The question right now is did he commit the crime, period?''

The state attorney general's office, which is reviewing cases in which Gilchrist's testimony was pivotal, briefly re-examined Johnson's case earlier this year. The attorney general said then that he was satisfied enough separate evidence existed to warrant the execution, including the victim's property being found in Johnson's home.

In seeking the death penalty, prosecutors cited Johnson's two previous convictions for rape in Chicago and the ``heinous'' nature of the rape and murder, and said he posed a danger to the community.

Johnson's public defender said his client might have been spared the death penalty if he hadn't been convicted of rape. But attorney Garvin Isaacs, who has represented several defendants Gilchrist testified against, said any one of the aggravating circumstances in Johnson's case could have resulted in the sentence, regardless of the rape conviction. "It's Oklahoma,'' he said. According to a recent survey by Amnesty International, Oklahoma has more executions per capita than any state.


Chemist's Errors Stir Fear: Did Oklahoma Execute Innocent?

By Arnold Hamilton & Diane Jennings - Dallas Morning News

OKLAHOMA CITY -- In a 21-year career, Oklahoma City police chemist Joyce Gilchrist was a prosecutor's dream: She delivered supportive lab analysis and convincing testimony that helped send hundreds to prison at least 23 people to death row.

Ms. Gilchrist may turn out to be a prosecutor's worst nightmare: So much of her work was questioned by appeals courts and forensics experts that she was suspended and fired.

Investigators are digging through 1,197 of her cases to see whether anyone is behind bars because of false or misleading testimony. And now in a year when Oklahoma leads the nation in carrying out the death penalty, and with suspect convictions being reviewed even beyond the Gilchrist cases some are pondering the unthinkable: Has Oklahoma executed the innocent? "I think there's a real concern that that has happened," said Jim Bednar, a former state and federal prosecutor and state judge who now heads the Oklahoma Indigent Defense System. "I think we've got to ensure that nobody else gets executed until we take a thorough look at this."

Ms. Gilchrist has denied wrongdoing. Her lawyer, Melvin Hall, describes her as a "scapegoat," noting she "had absolutely not a single piece of negative paper in her 21-year personnel file." Ms. Gilchrist declined to be interviewed. Defense attorneys and forensic scientists questioned Ms. Gilchrist's work particularly hair and fiber analysis as early as the mid-1980s.

Earlier this year, an FBI review of eight cases revealed significant flaws in her analysis. Since then, state lawmakers provided $650,000 for DNA testing, and Gov. Frank Keating ordered the Oklahoma State Bureau of Investigation to review all criminal cases involving Ms. Gilchrist.

Already, the state task force including the Oklahoma State Bureau of Investigation, the attorney general and the indigent defense system has targeted for independent DNA testing two death row cases involving Ms. Gilchrist's work.

The state crime lab has completed an initial review of 817 files from Ms. Gilchrist's cases, turning up problems significant enough in about 16 percent of them 130 to warrant a more extensive review.


Oklahoma City Police Chemist Faked the Crucial Evidence The Innocent Man They Put to Death

By Eric Rudder - CCADP

September 14, 2001

"I'M INNOCENT, and I've got peace in my heart, and I'm ready to go home." Those were among the last words uttered by Malcolm Rent Johnson before the state of Oklahoma took his life on January 6, 2000. A year and a half later, his innocence is nearly proven. But it will come too late.

Johnson is one of 12 people executed in Oklahoma who were convicted on the basis of testimony by Oklahoma City police chemist Joyce Gilchrist. Gilchrist was exposed earlier this year for mishandling evidence and lying under oath in thousands of criminal cases over a 25-year period.

Johnson's case--and his near-certain innocence--came to light after state officials ordered a review of 1,700 convictions where Gilchrist's testimony played a part.

At Johnson's trial, Gilchrist testified that Johnson's blood type matched sperm collected from the apartment of Ura Thompson, a 76-year-old woman killed in 1981. But a reexamination last month of Gilchrist's "evidence" found that the slides she prepared contained no sperm at all!

The reexamination was conducted by Oklahoma City police DNA laboratory manager Laura Schile and endorsed by three other chemists. But after issuing the report, Schile resigned--following a confrontation with the lab's chief. "She was intimidated by the Oklahoma City Police Department and some of the lawyers involved in this case," said Schile's lawyer, Gavin Isaacs.

State officials are claiming that Johnson would have been convicted without Gilchrist's testimony. What garbage! The only other evidence against him was circumstantial. Oklahoma authorities aren't willing to admit that they executed an innocent man. "We have used for the last 25 years bad science in this state to convict people, and we have stretched the truth," said James Bednar, head of Oklahoma's Indigent Defense System and a former assistant state attorney general. "It's got to stop."

Gilchrist's willingness to lie in order to get convictions is only the tip of the iceberg in the U.S. criminal injustice system. In West Virginia, forensic "specialist" Fred Zain is facing five felony fraud charges for false testimony. In Idaho, Charles Fain walked off death row last month after DNA tests proved that the forensic evidence used against him 17 years ago was faulty.

And in Illinois--in a case remarkably similar to Gilchrist's--officials are reopening at least nine cases in which police forensic scientist Pamela Fish gave either false or misleading testimony.

The most stunning revelation so far is that Fish withheld evidence in a 1986 murder trial of four Black teenagers--who may now be released. Every example of overzealous prosecutors and lying police scientists helps to make our case against the death penalty--and the rest of the rotten injustice system.


Evidence Questioned in Execution: Police Memos Contradict Chemist's Forensic Testimony at a 1982 Oklahoma City Murder Trial

By Henry Weinstein - Los Angeles Times

August 30, 2001

The investigation of a controversial Oklahoma City police chemist has produced evidence raising questions about whether she testified falsely in the 1982 rape and murder trial of a man who was executed last year, protesting his innocence to the end.

On Wednesday, Oklahoma Atty. Gen. Drew Edmondson released two memos written last month by four Oklahoma City Police Department forensic scientists saying tests they had conducted of material found at the murder scene contradicted testimony given by Joyce Gilchrist.

Edmondson stressed in an interview that he remained convinced that Malcolm Rent Johnson was guilty of the rape and murder of Ura Alma Thompson because of the strength of other evidence.

Edmondson, who released the memos after they were described in stories by the Daily Oklahoman and Associated Press, said it was possible that "we might reexamine the evidence down the road."

Now, however, Edmondson said his office was focused on reviewing numerous cases in which Gilchrist testified and the defendant received a long prison term or a death sentence not yet carried out.

The Oklahoma City Police Department placed Gilchrist on paid administrative leave in March after the FBI reported that Gilchrist made significant errors in five of eight cases the bureau reviewed.

That report led to the release of Jeffrey Pierce, who had served 15 years of a 65-year sentence for rape--a case in which Gilchrist offered key testimony about hair found at the crime scene.

Earlier this month, an appeals court in Denver reversed the rape and murder conviction of Alfred Brian Mitchell, and ordered him retried. The U.S. 10th Circuit Court of Appeals ruled that jurors might have relied on Gilchrist's testimony that falsely implicated him for raping a woman before killing her.

The judges said that during Mitchell's appeal, his attorneys obtained Gilchrist's handwritten notes, which "completely undermined [her] testimony."

On Wednesday, a spokeswoman for the Oklahoma City police said there are five separate probes of Gilchrist's work taking place, including an internal investigation by the department. Gilchrist has denied any wrongdoing. On Wednesday, her attorney, Melvin Hall, said neither he nor his client had any comment on the forensic scientists' memos.

The latest controversy involves the 1982 trial of Johnson, who was convicted of raping and murdering Thompson, 76, who was found suffocated in her apartment on Oct. 27, 1981. There was no eyewitness, but the building manager said he had seen Johnson nearby.

Johnson, then 23, was arrested when local police officers found items belonging to Thompson at Johnson's apartment when they went to see him about an alleged parole violation. Johnson had two prior rape convictions. Among the items found were Thompson's apartment key, a watch and a ring. Johnson said his brother gave him the items--a contention the brother denied.

At the trial nearly 20 years ago, Gilchrist testified that six samples taken from a bedspread and a pillow in the victim's apartment were the same blood type as Johnson's. Gilchrist also testified that semen found on a stocking was consistent with Johnson's blood type.

She said that although sperm was found on a vaginal swab taken from the victim, there was not enough to test. Additionally, Gilchrist said hair fragments found at the scene were similar to Johnson's hair.

In late July, four police chemists reviewed slides prepared by Gilchrist for the trial. Laura Schile, the lab's DNA manager, described the findings in a memo to Richard Smith of the Oklahoma Municipal Counselors office. "It should be noted that upon examination of these slides" the findings were contradictory "to those reported out and testified to by Joyce Gilchrist," Schile wrote. "Spermatozoa is not present on" three slides prepared with material that came from the bedspread or three slides prepared with material that came from the pillowcase, Schile added.

A separate memo by three of Schile's colleagues presents the same conclusion. Schile recommended to Smith, who is advising the police department in its probe of Gilchrist, that the actual physical evidence should be reexamined in the Johnson case. "Solely relying upon the notes, testimony and reports that pertain to these questioned cases is not sufficient," Schile wrote, adding that the Johnson case marked the second instance in which Gilchrist's testimony contradicted physical evidence that had been independently reexamined.

Attorneys familiar with forensic techniques said that if Gilchrist properly prepared the slides, and they contained sperm at the time, it should still be present. Schile resigned from the police department on Aug. 2 amid reports that she was in conflict with department chieftains. She could not be reached on Wednesday.

Schile's attorney, Gavin Isaacs, said: "She was intimidated by the Oklahoma City Police Department and some of the lawyers involved in this case. . .  She has cooperated with law enforcement investigators." The three other chemists remain on the job but could not be reached for comment.

In recent weeks, the Johnson case has taken an increasingly high profile in the Gilchrist probe. Oklahoma City defense lawyer Doug Parr, who is playing a key role in the investigation, said that after he and other attorneys reviewed 12 cases in which Gilchrist had done the prosecution forensic work and the defendant subsequently was executed, "we decided that Malcolm Johnson had one of the strongest claims of actual innocence." "He went to his death proclaiming innocence," Parr said. "His confession to the prison chaplain was that he had done a lot of bad things but not this."

Parr acknowledged that there was strong circumstantial evidence supporting Johnson's guilt. But he also maintained there was no reason not to review all the evidence and subject the biological evidence to DNA testing.

Parr said he has been attempting to get Oklahoma City official to send that evidence to a highly regarded lab in Richmond, Calif. He said the Oklahoma City officials wanted to send the material to a lab he considered inferior. Jessica Cummins, the Oklahoma City police spokeswoman, said simply that the two sides disagreed on where the testing should be done.

Parr also has filed a lawsuit seeking access to all records in the case. The city has opposed this request and has acknowledged that it had lost some of the records.

DNA testing was not available at the time of Johnson's trial. Oklahoma City public defender Robert Ravitz asked the trial judge for funds to hire his own forensic expert to examine the evidence, but the request was denied.

At the time, Ravitz questioned Gilchrist's testimony that blue cotton fibers found at the crime scene matched a shirt Johnson owned. Ravitz said the type of shirt was so common that it could not be conclusively linked to Johnson.

Years later, federal public defender Vicki Werneke of Oklahoma City, who represented Johnson in constitutional challenges to his conviction, attempted to secure DNA testing of the biological evidence.

The state attorney general's office resisted, saying that under federal laws governing death penalty appeals, Johnson was ineligible for testing. Federal judges agreed, so no testing was done.

Johnson's appellate lawyers contended that prosecutors had improperly struck three potential jurors who were African American, as was Johnson. The victim was white.

On Wednesday, Edmondson said that he was not sure what to make of the memos by the police chemists. But he asserted that the case against Johnson had been very strong. "He could have been proven guilty beyond a reasonable doubt without any forensic testimony," Edmondson said.


Johnson v. State, 731 P.2d 993 (Okl.Cr. 1987), cert. denied, at 484 U.S. 878 (1987) (Direct Appeal).

On appeal from his sentence of death for the murder of a seventy-six-year-old woman, Malcolm Rent Johnson presents seventeen (17) assignments of error. The victim, Ura Thompson, was found dead and partially decomposed in her apartment on October 27, 1981. The medical examiner determined that the cause of death was suffocation, and that the victim suffered blows to the head and jaw, as well as forced intercourse.

Jewelry, furs and other valuables were discovered missing from the victim's apartment. The police were given consent to search the apartment where appellant lived with his girlfriend.

The victim's typewriter, rings, watch, antique jar, keyrings, cigarette case, and hand mirror were among the items found in the apartment. The specimens of hair and body fluids obtained from appellant were found to match the unknowns discovered in the victim's apartment.


Johnson v. Gibson, 169 F.3d 1239 (10th Cir. 1999) (Habeas).

On the evening of October 27, 1981, Frank Thompson found his aunt, Ura Alma Thompson, *1244 an elderly white woman, deceased on the floor of her Oklahoma City apartment. Following an autopsy, the medical examiner found evidence of forcible sexual intercourse before death.

He concluded that although Thompson was not strangled, she died of asphyxiation either because of pressure on her chest during the intercourse or because her assailant covered her mouth and nose.

On October 27, 1981, police arrested Johnson on an unrelated weapons charge at his apartment, where they seized several items later identified as belonging to Thompson.

On October 28, 1981, the police obtained hair, saliva, and blood samples from Johnson. In interviews with police after his arrest, Johnson denied knowledge of the homicide, but when told that semen found in Thompson's body matched his own, he reportedly responded, "you couldn't have found my semen in her, I didn't come." Trial Tr. at 913.

At the first stage of trial, Joyce Gilchrist, a state forensic chemist, testified that semen found on the bed coverings in Thompson's apartment matched Johnson's blood type. She also testified that several strands of hair found at the scene of the crime were "consistent microscopically" with petitioner's hair. Trial Tr. at 1033, 1038-39. The defense did not present any witnesses. Petitioner was found guilty on March 22, 1982.

At the second stage of trial, the state introduced evidence about Johnson's prior Illinois convictions for raping two different women, two separate charges of armed robberies, and one burglary.

Four women testified that petitioner had raped or attempted to rape them or attempted to rob them with a firearm. These latter offenses were unadjudicated at the time of trial.

Sixteen of Johnson's relatives testified that he came from a broken and abusive home, and that at the age of two he spent two months, often under restraint, in the hospital for an undiagnosed debilitating illness.

They also testified that Johnson, the oldest of four children, was responsible for his siblings' care and for other household duties. His girlfriend testified that he assumed a parental role with her five-year old son. Neither side offered psychiatric testimony.

The court submitted three aggravating circumstances for the jury's consideration: (1) prior conviction of a felony; (2) continuing threat to society; and (3) especially heinous, cruel, or atrocious killing. The jury rejected the third aggravator but found that the other two outweighed the evidence of mitigation. Petitioner was sentenced to death.


189 F.3d 477

MALCOLM RENT JOHNSON, Petitioner-Appellant
DAN REYNOLDS; JAMES L. SAFFLE, Director, Oklahoma Department of Corrections; THE ATTORNEY GENERAL OF THE STATE OF OKLAHOMA, Respondents-Appellees

Case Number: 97-6303

Decided: 09/03/1999

(D.C. No. CIV-97-340-C) (W.D. Okla.)


Before EBEL, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and MURPHY, Circuit Judge.

EBEL, Circuit Judge.

1 Petitioner-Appellant Malcolm Rent Johnson ("Johnson") appeals the district court's denial of his federal habeas corpus petition brought pursuant to 28 U.S.C. 2254. On appeal, petitioner argues that the district court erred by concluding that (1) his Fourth Amendment claim was barred from federal review, legally frivolous, and factually meritless, and (2) his remaining claims, including a claim of ineffective assistance of counsel, were procedurally barred and lacked merit. We exercise jurisdiction under 28 U.S.C. 2253, and affirm.


2 In January 1983, Johnson was convicted, after an Oklahoma state jury trial, of one count of Attempted First Degree Rape After Former Conviction of Two or More Felonies, and one count of Robbery With Firearms After Former Conviction of Two or More Felonies, and sentenced to two consecutive terms of seventy-five years' imprisonment for his involvement in events that took place on October 12, 1981.

3 According to testimony at trial, during the late morning hours of October 12th, the two victims, Polly Johnson and Maggie Woitchek, entered an art studio, only to find Johnson waiting inside with a gun. Johnson took the women at gunpoint to the front of the studio, threw them to the ground, and instructed them to keep their heads down. Mrs. Johnson testified that she "looked up at him one time, and he hit me in the head with a gun, and then he took my glasses." Johnson then dumped the contents of both of the women's purses onto the floor and began sifting for money.

4 After some time, Johnson forced the women to the back of the studio, where he locked Mrs. Woitchek in a restroom. Alone in the studio with Mrs. Johnson, petitioner-appellant Johnson demanded money of her, then disrobed her, hit her, and attempted to rape her. After a second attempt to rape Mrs. Johnson, petitioner-appellant Johnson fled when he heard James Weir entering the studio in his wheelchair.

5 In addition to the eyewitness identifications of Johnson made by Mrs. Johnson, Mrs. Woitchek, and Mr. Weir at trial, the government relied on the expert testimony of Joyce Gilchrist, a serologist working for the state of Oklahoma, and physical evidence seized from Johnson's apartment which provided circumstantial evidence of his guilt specifically, a key to the art studio, Mrs. Johnson's ChecOKard, and a doll from the studio (all of which Mrs. Johnson reported stolen to the police), as well as a gun that Mrs. Johnson testified "look[ed] like the gun" that petitioner-appellant Johnson hit her with.

6 The search that led to the discovery of these items was conducted on October 27, 1981, in the course of executing an arrest warrant charging Johnson with possession of a firearm after conviction of a felony. Oklahoma City Police Detective Jewell Fay Smith testified at trial that, upon entering Johnson's residence to execute the arrest warrant, she observed "an oriental doll in ceremonial robes" that she believed could have been the doll that Polly Johnson had reported stolen from the art studio. Detective Smith further testified that after observing the doll, she "backed out of the apartment," and obtained informed consent to search the residence from Johnson's wife, Eugenia Johnson, who shared dominion over the whole of the residence. In executing the consensual search of the residence, Oklahoma City Police seized the doll, a set of keys from a drawer in a bedside night stand, a gold pillbox from the headboard of the bed, and a CheckOKard and a revolver, both found under the mattress of the bed. Johnson's attorney, an assistant Oklahoma County public defender, claimed that the search violated the Fourth Amendment (because the arrest warrant the police were purportedly executing was a mere pretext for the real purpose of their visit to the Johnson residence, which was to conduct the search); thus, Johnson objected to the admission of the physical evidence seized in the search, but the trial court overruled the objection.

7 After his conviction and sentence, Johnson, represented by a different attorney from the same Oklahoma County public defenders' office, raised five issues in his direct appeal to the Oklahoma Court of Criminal Appeals, including a claim that the admission of evidence seized from his home violated the Fourth and Fourteenth Amendments to the United States Constitution. Johnson v. State of Okla., No. F-83-432, at 1 (Okla. Crim. App. Apr. 21, 1986) (unpublished). The Oklahoma Court of Criminal Appeals affirmed. Next, Johnson filed an application for post-conviction relief in Oklahoma state district court, raising the same Fourth Amendment claim rejected on direct appeal, as well as several other claims, including one of ineffective assistance of trial counsel. The state district court denied Johnson's application on grounds of procedural bar. See State of Okla. v. Johnson, No. CRF-81-4932, at 1-2 (Okla. Co. Dist. Ct. July 21, 1995) (unpublished). The Oklahoma Court of Criminal Appeals affirmed. See Johnson v. State of Okla., No. PC 95-928, at 3 (Okla. Crim. App. Mar. 7, 1996) (unpublished).

8 Thereafter, Johnson filed a petition for writ of habeas corpus in the United States District Court for the Western District of Oklahoma pursuant to 28 U.S.C. 2254, in which he raised the following issues, all of which had been raised in his state postconviction application: (1) his identification at trial by the victims was tainted by an unconstitutionally suggestive identification at the preliminary hearing; (2) the trial court unconstitutionally admitted materially misleading and unreliable hair and fiber evidence; (3) he was deprived of his Sixth Amendment right to effective assistance of counsel at trial; (4) the government failed to disclose exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963); (5) the police interrogation procedures following his arrest violated his Fifth and Sixth Amendment rights; and (6) the evidence seized during the search of his apartment and introduced at trial should have been suppressed as the fruit of an illegal search obtained in violation of the Fourth Amendment. On referral from the district court, the magistrate judge, applying the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), found the first five claims to be procedurally barred and, alternatively, without merit and harmless in any event. With respect to Johnson's Fourth Amendment claim, the magistrate judge concluded that the claim was barred because Johnson had had a full and fair opportunity to litigate his claim in state court, see Stone v. Powell, 428 U.S. 465, 481-82 (1976), and alternatively that the claim lacked merit. The district court, upon de novo review, adopted the magistrate's recommendation and denied Johnson's habeas petition.

9 On appeal, Johnson contends that the district court erred in (1) concluding that he had received a full and fair opportunity to litigate his Fourth Amendment claim, (2) finding procedural bar as to his other claims, and (3) alternatively finding no merit to these remaining claims. We asked for further briefing from the parties on the discrete issue of whether procedural bar should apply to an ineffective assistance of counsel claim where appellate counsel was from the same public defender's office as trial counsel. We now affirm.


I. Standard of Review

10 Johnson filed his federal petition for habeas corpus relief after the April 24, 1996 effective date of AEDPA, and therefore we apply the provisions of 28 U.S.C. 2254, as amended by AEDPA. See Rogers v. Gibson, 173 F.3d 1278, 1282 n.1 (10th Cir. 1999). Thus, we may not grant Johnson habeas relief:

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; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. 2254(d). Additionally, "a determination of a factual issue made by a State court shall be presumed to be correct." 28 U.S.C. 2254(e)(1).

II. Fourth Amendment Claim

11 Johnson claims that Oklahoma violated his Fourth Amendment rights when it introduced at trial the physical evidence seized from his apartment.1 The federal district court dismissed this claim because it believed that Johnson had been given a "full and fair" opportunity to litigate his claim in the Oklahoma courts. See Stone v. Powell, 428 U.S. 465, 482 (1976). We agree.

12 In Stone, the Supreme Court held that "where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, the Constitution does not require that a state prisoner be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial." Id. at 482. We have "held that Stone's 'opportunity for full and fair consideration' and/or 'litigation' includes, but is not limited to the procedural opportunity to raise or otherwise present a Fourth Amendment claim, and the full and fair evidentiary hearing contemplated by Townsend v. Sain, 372 U.S. 293 . . . (1963)." Miranda v. Cooper, 967 F.2d 392, 401 (10th Cir. 1992).

13 Here, Johnson does not dispute that he was afforded a full and fair opportunity to litigate the constitutionality of admitting the items seized from his home through the initial in camera hearing conducted by the trial court and the direct review by the Oklahoma Court of Criminal Appeals. An examination of the transcript from that hearing confirms that Johnson had a full and fair opportunity to litigate his Fourth Amendment claim. The trial transcript indicates that during the direct examination of Detective Jewell Fay Smith, as the prosecutor began to inquire about the search of the Johnson apartment, defense counsel asked for an "in camera hearing as far as probable cause to enter the apartment and probable cause to arrest Malcolm Johnson." Defense counsel continued: "It's my contention that all the evidence obtained inside the home or the apartment are the fruits of an illegal search and entry pursuant to an illegal arrest warrant that was not based on probable cause." The court recessed, dismissed the jury, and reconvened for an in camera hearing. There, defense counsel examined Detective Smith, who testified that she came to the Johnson residence to execute an arrest warrant issued for Johnson based on a charge of carrying a firearm after former conviction of a felony. Detective Smith explained that after she entered the Johnson residence, she observed "an oriental doll in ceremonial robes," which she believed was associated with the attempted rape and robbery of Polly Johnson. Further, Detective Smith testified that upon seeing the doll, she exited the residence and obtained informed consent to search the residence from Malcolm Johnson's common-law wife, Eugenia Johnson. During the in camera examination by the prosecutor, Detective Smith clarified that Eugenia Johnson signed the search waiver freely and voluntarily without any threats or inducements after being read her Miranda rights.

14 Next, Eugenia Johnson testified at the in camera hearing. In response to the prosecutor's inquiry, Eugenia Johnson explained that the apartment was leased in her name, that she had "full use of all the inside of that apartment," and that she executed the search waiver after being advised of her Miranda rights, without being threatened or promised anything. Upon questioning by defense counsel, Eugenia Johnson clarified that she had never told anyone that she had been forced into signing the search waiver, that she had never told anyone that she had been threatened into signing the search waiver, and that the police officers never threatened either to take her to jail or to have her children removed from her custody if she failed to sign the waiver.

15 At the conclusion of the in camera hearing, defense counsel moved to suppress the physical evidence seized during the search based on the Fourth Amendment to the United States Constitution. The trial court overruled the motion to suppress.

16 On direct appeal, Johnson contended that "the trial court erred in admitting into evidence items seized by the police from his home, in that this evidence was the fruit of an illegal search and seizure." Johnson v. State of Okla., No. F-83-432, at 3 (Okla. Crim. App. Apr. 21, 1986). He argued that Eugenia Johnson "did not have the authority to waive his 4th and 14th Amendment rights." Id. However, the Oklahoma Court of Criminal Appeals rejected this argument, stating: "The law in Oklahoma is well-settled: When two persons . . . possess common authority over or other sufficient relationship to the premises or effects sought to be inspected, either of them is capable of consenting to the search. . . . Therefore, this contention is without merit." Id. at 3-4 (quotation omitted) (citation omitted).

17 While Johnson does not, and could not, argue that the procedures described above deprived him of a full and fair opportunity to litigate his Fourth Amendment claim, he does argue that a later (11 years after trial) recantation by Eugenia Johnson of her testimony, that she freely and voluntarily signed the search waiver prior to the search, entitles him to habeas relief (or at least an evidentiary hearing). We disagree.

18 Johnson contends that Eugenia Johnson's consent provides the only basis for the search of the Johnson residence,2 and that once the actuality or validity of that consent is put in doubt, the basis for the search dissolves, and the search and seizure must be declared unconstitutional. Once the search and seizure are found to violate the Fourth Amendment, Johnson argues the physical evidence seized from his residence would have to be excluded from trial, and his conviction would be unreliable.

19 We believe that Stone v. Powell precludes the habeas relief he seeks.3 In Stone, focusing on the fact that "[t]he primary justification for the exclusionary rule then is the deterrence of police conduct that violates Fourth Amendment rights," the Supreme Court noted that "[p]ost-Mapp decisions have established that the rule is not a personal constitutional right." 428 U.S. at 486. Because the exclusionary rule is a judicially created one, the Court explained that its application was not universal in criminal law, and that in deciding whether its application was appropriate, courts balance the benefits sought to be achieved by the rule against the costs of its application. Id. at 488-89. The Court concluded that the cost of "deflect[ing] the truthfinding process and often free[ing] the guilty," that are imposed by application of the exclusionary rule persists in the federal habeas context, id. at 490, but the benefits of deterring police conduct violative of the Fourth Amendment diminish, id. at 493, and thus the balance tips against application of the exclusionary rule for Fourth Amendment violations on federal habeas. See id. at 494-95.

20 Thus, the Court concluded that "where the State has provided an opportunity for a full and fair litigation of [the] Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial." Id. at 494 (footnotes omitted).

21 Here, we have held that the state of Oklahoma provided Johnson an opportunity for full and fair litigation of his Fourth Amendment claim. However, he contends that a recent recantation of testimony central to that earlier, state litigation of his Fourth Amendment claim entitles him to relief. But the fact remains that Johnson litigated his Fourth Amendment claim in the state courts, and the prohibition against our application of the exclusionary rule on federal habeas precludes the relief Johnson seeks. Accordingly, we affirm the district court's denial of this claim.

III. Johnson's Remaining Claims

22 The district court dismissed Johnson's five remaining claims on the ground that the Oklahoma courts had held them to be procedurally barred by independent and adequate state law grounds and alternatively on the ground that they lacked merit and, in any event, any error was harmless. The claims dismissed by the district court are: (1) Johnson's identification at trial by the victims was tainted by an unconstitutionally suggestive identification at the preliminary hearing; (2) the trial court unconstitutionally admitted materially misleading and unreliable hair and fiber evidence; (3) Johnson was deprived of his Sixth Amendment right to effective assistance of counsel at trial; (4) the government failed to disclose exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963); and (5) the police interrogation procedures following Johnson's arrest violated his Fifth and Sixth Amendment rights.

23 Johnson now contends that when he did raise these claims in Oklahoma state court, via an application for postconviction relief, the Oklahoma courts' dismissal of the claims did not "unequivocally rest[] upon a state procedural default,"4 Ylst v. Nunnemaker, 501 U.S. 797, 806 (1991), and thus we should reverse the district court's dismissal predicated on the ground of independent and adequate state procedural bar. It is well established that a state procedural bar will not preclude federal habeas review unless the last state court to adjudicate the issue relied on state procedural bar. Ylst, 501 U.S. at 801-03; Hooks v. Ward, No. 98-6196, 1999 WL 502608, at *7 (10th Cir. July 16, 1999).

24 Here, Johnson argues that the Oklahoma Court of Criminal Appeals did not clearly indicate that it was affirming the denial of his application for postconviction relief based on state procedural bar. That court stated:

Petitioner has failed to show that he is entitled to any relief in a post-conviction proceeding. Of the eight (8) propositions (one with sub-propositions) presented in his application, he has not raised any issues that he did not or could not have raised in his direct appeal. Hale v. State, 807 P.2d 264, 266-67 (Okla. Cr. 1991). In two of his propositions, Petitioner alludes to possible reasons why those issues were not raised or were insufficiently raised in his direct appeal. However, those reasons are not sufficient to allow the propositions to be the basis of this subsequent post-conviction application. 22 O.S. 1991, 1086.

Johnson v. State of Okla., No. PC 95-928, at 1-2 (Okla. Crim. App. Mar. 7, 1996) (unpublished). In light of the fact that the case and the statute cited by the Oklahoma Court of Criminal Appeals are clear invocations of the state procedural bar for claims which "could have been raised on direct appeal, but were not," Hale, 807 P.2d at 266; see also Okla. Stat. Ann. tit. 22, 1086, we believe that the Oklahoma Court of Criminal Appeals dismissed the claims presented in Johnson's first five claims in his federal habeas petition on the basis of state procedural bar.

25 Thus "[f]ederal-court review of the claim[s are] . . .barred unless respondent can establish 'cause and prejudice' for the default, see Murray v. Carrier, 477 U.S. [478], 493, 495-96 [1986]." Ylst, 501 U.S. at 806. In his petition for habeas corpus before the federal district court, Johnson explained that he failed to raise these claims on state direct appeal because his "appellate counsel refused and/or neglected to raise the issue." The district court construed these statements as an effort by Johnson to show cause for defaulting the claims in state court; however, the district court found no appellate attorney error for failing to raise the claims, and thus the district court found Johnson did not meet the "cause and prejudice" standard of Murray. Before this court, Johnson has not argued that his state procedural default should be excused because of his state appellate counsel's performance; thus we do not consider the issue. Accordingly, we dismiss claims 1, 2, 4, and 5 on this ground.5

26 Johnson's third federal habeas claim alleged several instances of ineffective assistance of trial counsel.6 The district court lumped this claim in with claims 1, 2, 4, and 5 in its general discussion of state procedural bar. However, this court has recognized that federal habeas claims involving assertions of ineffective assistance of counsel must be treated differently than other claims for procedural bar purposes. See English v. Cody, 146 F.3d 1257, 1261-63 (10th Cir. 1998). In English, we held that Supreme Court and Tenth Circuit authorities "mandate . . . that this court never apply a state procedural bar [to an ineffective assistance of counsel claim] when trial and appellate counsel are the same." Id. at 1263.7

27 Johnson concedes that he was represented by different lawyers at trial and on appeal. However, because both his trial lawyer, Robert A. Ravitz, and his lawyer on direct appeal, Thomas J. Ray Jr., worked for the Oklahoma County Public Defender's Office, Johnson argues that the two should be treated as the same lawyer for the purposes of analyzing the issue of procedural bar under English v. Cody. Because of the novelty of this issue, we ordered the parties to address it in supplemental briefing.

28 At the root of the English rule requiring different counsel at trial and on appeal in order for a federal court to respect a state bar as to a claim of ineffective assistance of trial counsel is the recognition that a "layman will ordinarily be unable to recognize counsel's errors and to evaluate counsel's professional performance." Kimmelman, 477 U.S. at 378. Likewise, we believe a lawyer who performs inadequately at trial will be unlikely or unwilling to realize his or her representational deficiencies on appeal,8 and will be awkwardly situated to call the appellate court's attention to deficient performance below.9

29 At least this second concern is implicated in cases where a defendant is represented by two lawyers from the same public defender's office at trial and on direct appeal. When an appellate attorney regularly works closely in the same public defender's office with the lawyer who represented the defendant at trial, principles of collegiality may work against that appellate lawyer vigorously seeking to identify and argue trial attorney error. It is for this reason that two lawyers from the same private law firm are often treated as the same for conflict of interest purposes. Cf. Martinez v. Sullivan, 881 F.2d 921, 930 (10th Cir. 1989) (assuming without deciding that the two law partners should be considered as one attorney for conflict of interest purposes). Although it is possible that greater latitude may be allowed in a not-for-profit organization like a public defender's office because the two lawyers are not tied together by a common profit motive, the fact remains that the two lawyers even in a public defender's office are professional colleagues.10

30 However, in this case, we do not need to decide the issue of whether English's separate counsel requirement can be met when different lawyers from the same public defender's office represent the same defendant at trial and on appeal. We have evaluated Johnson's claims of ineffective trial counsel on the merits and we agree with the Magistrate's Report below, adopted by the district court, that such claims are without merit. Accordingly, we affirm the denial of habeas relief on the issue of ineffective counsel on the merits, without reaching the issue of procedural bar.



* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. This court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

1As noted above, the contested items include a doll in ceremonial robes taken from the art studio, a CheckOKard with the name of one of the victims on it, a key that fit the art studio door, and a small gold pillbox taken from the purse of one of the victims.

2We note that the federal district court intimated that the search and seizure of the items might have been justified under the search incident to arrest and plain view exceptions to the warrant requirement.

3Additionally, we note that we see no error in the district court's alternative ruling that Johnson's claim has no merit.

4In his petition for a writ of habeas corpus in the district court, Johnson claimed that he had raised his first claim in his state direct appeal. While he did make a claim related to eyewitness identification on state direct appeal, that claim alleged simply that "the trial court committed fundamental error by refusing to include a precautionary instruction on eye-witness identification. His federal habeas claim related to eyewitness identification alleges that "[t]he identification of Petitioner at trial by Polly Johnson and Marguerite Woitchek was tainted by the unconstitutionally suggestive identification of Petitioner at the Preliminary Hearing and therefore violated Petitioner's Rights under the Fifth and Fourteenth Amendments to the United States Constitution." Though both claims attempt to undermine the eyewitness testimony damaging to Johnson, the substance of the claims is very different. It was the latter claim, that Johnson raised in his application for postconviction relief, that was deemed procedurally barred (because it was not raised on direct appeal) by the Oklahoma Court of Criminal Appeals. Thus, we conclude that Johnson failed to raise claim one of his federal habeas petition on state direct appeal.

5Once again, we note that we find no error in the district court's alternative ruling that these claims are without merit.

6Specifically, Johnson claims that his trial counsel was ineffective for: (1) waiving Johnson's fundamental right to an alibi instruction; (2) failing to request a state-appointed expert to rebut the testimony of Joyce Gilchrist; (3) failing to investigate the basis for objections to inadmissible evidence; (4) failing to make an opening statement; (5) failing to object to inflammatory statements made by the prosecutor during closing argument; and (6) failing to request a jury instruction regarding the unreliability of eyewitness testimony.

7We set out the two prerequisites for a state procedural bar to be applicable on federal habeas, as follows:

[N]o state procedure for resolving claims of ineffective assistance [of counsel] will serve as a procedural bar to federal habeas review of those claims unless the state procedures comply with the imperatives set forth in Kimmelman [v. Morrison, 477 U.S. 365 (1986)]: (1) allowing petitioner an opportunity to consult with separate counsel on appeal in order to obtain an objective assessment of trial counsel's performance and (2) providing a procedural mechanism whereby a petitioner can adequately develop the factual basis of his claims of ineffectiveness.

English, 146 F.3d at 1263.

8Even if appellate counsel is different here, the Motion for New Trial was signed by the trial counsel.

9In fact, in order for an attorney on appeal to make out a claim that he provided constitutionally ineffective representation at trial, he would have to argue, on the public record, that he "was not a reasonably competent attorney," Strickland v. Washington, 466 U.S. 668, 687 (1984) (quotation omitted), that he failed to "bring to bear such skill and knowledge as [would have] render[ed] the trial a reliable adversarial testing process," id. at 688, that his errors were "so serious that [he] was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment," id. at 687, that his performance was so poor that it fell outside "the wide range of reasonable professional assistance," id. at 689, and that but for his gross mis- or under-representation of his client, his client would have been acquitted (or received a lesser sentence), see id. at 694 (to prevail under Strickland's prejudice prong, a defendant must establish that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different").

10Here, the record is inadequate for us to evaluate whether there was separation between trial counsel and appellate counsel within the Oklahoma County Public Defender's Office and, if so, whether the separation was sufficient to counteract institutional and personal loyalties that might impair the inclination of appellate counsel to challenge the sufficiency of trial counsel's performance.



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