Tenth Affirms Denial of Habeas Relief for Prisoner Serving Life Sentence

Johnson v. Mullin, 2007 WL 3120405 (10/26/07)(Published) - The 10th upholds the denial of a habeas petition of a life prisoner. There was sufficient evidence the petitioner was present at the bank at the time of the robbery and killing of four people. It was okay to hold the petitioner liable for felony murder, even if he merely aided and abetted the principal robber. It was okay to refuse to instruct the jury that the petitioner could not be convicted of felony murder if he wasn't present at the bank, because that was not true; he could be absent from the bank and still be guilty of felony murder. The trial outcome would not have been altered if the petitioner was allowed to refresh the memory of his alibi witness because the jury could have found another witness' time estimate more accurate than the alibi witness'. The defendant's letter was admissible to rebut his claim of a horrible childhood and abuse by his co-defendant. The prosecutor's reference to the petitioner engaging in a gay lifestyle was not unduly prejudicial in light of the defense's acknowledgment of the petitioner's gay lifestyle and use of the petitioner's "passive and effeminate characteristics" to show he was bossed around by the co-defendant. The state's presentation of an inmate's testimony about the petitioner's admissions was not a knowing presentation of perjury. While the defense strongly challenged the testimony, it was "entirely plausible" and not "incredible on its face." So also an officer's testimony about the time it took to go from the petitioner's apartment to the bank was not obviously perjury. So also the bank customer's testimony that she remembered two robbers talking to each other after she had twice been shot in the head was not necessarily false, even though no other eyewitness remembered the conversation she remembered. The sentencing proceedings were not rendered unfair by virtue of the prosecutor's "perhaps improper" exhortation to the jury to remain strong. The remarks were not sufficiently egregious.