A jury found Johnson guilty of felony murder and arson. Ind. Code
§§ 35-42-1-1(2) (felony murder); 35-43-1-1(a) (arson). As the aggravating circumstance that made
Johnson eligible for a death sentence, the State charged the killing had been
done intentionally during an arson and burglary. I.C. § 35-50-2-9(b)(1).
The jury unanimously recommended the death penalty. The Madison Superior Court followed
the jurys recommendation, and sentenced Johnson to death.
We affirmed Johnsons convictions and sentence on direct appeal in Johnson v. State,
584 N.E.2d 1092 (Ind. 1992), rehg denied, cert. denied, 506 U.S. 853 (1992).
We affirmed the trial courts judgment denying relief in collateral state post-conviction
proceedings in Johnson v. State, 693 N.E.2d 941 (Ind. 1998), rehg denied.
Johnson then sought collateral review in the federal courts. The district court
dismissed Johnsons petition for a writ of habeas corpus because it was filed
late, Johnson v. Parke, IP 98-963-C-Y/G (S.D. Ind. Oct. 28, 2003) (unpublished order),
which the federal appellate court affirmed in Johnson v. McBride, 381 F.3d 587
(7th Cir. 2004), rehg denied, cert. denied, ___ U.S. ____, 125 S.Ct. 1649
(Mar. 21, 2005). Johnson has thus received all the review to
which he is entitled as a matter of right.
By counsel, Johnson has now tendered a Successive Post-Conviction Relief Petition and other
papers requesting permission to litigate additional collateral claims in state court. The
State opposes his request.
We have jurisdiction because Johnson is sentenced to death.
See Ind. Appellate
Rule 4(A)(1)(a). Execution of the death sentenced has been ordered for May
25, 2005, before sunrise. Johnson v. State, No. 48S009305-PD-498 (Ind. April 25,
2005) (unpublished order).
To litigate another, or successive, post-conviction claim, Johnson needs our permission. We
will authorize the proceeding to go forward if the petitioner establishes a reasonable
possibility that the petitioner is entitled to post-conviction relief. P-C.R. 1 §
12(b). In deciding whether a petitioner has made the required showing, we
consider the applicable law, the petition, materials from the petitioners prior appeals and
post-conviction proceedings (including the record, briefs and court decisions), and any other material
we deem relevant. Id.
The post-conviction court rejected this claim and we affirmed. See Johnson, 693
N.E.2d at 946-48. We noted the States affirmative duty to disclose material
evidence favorable to the defendant pursuant to Kyles v. Whitley, 514 U.S. 419
(1995) and Brady v. Maryland, 373 U.S. 83 (1963). However, we concluded
the information the State had not disclosed was not exculpatory to Johnson.
First, Johnson admitted participating in the crimes, so any information about whether Decker
was involved would have been known to Johnson before trial; he did not
need the State to tell him.
Second, despite Johnsons already knowing whether Decker or anyone else had been an
accomplice, Johnson waited until his convictions and sentence had been affirmed on direct
appeal to make those assertions publicly. Therefore, we concluded, the States failure
to turn over information about the hair did not violate Johnsons right to
exculpatory evidence, did not affect the outcome of the trial, and did not
make the trial unfair. Johnson, 693 N.E.2d at 947-48.
One specific claim then, and now, was that the prosecutor had not disclosed
the existence of a 1986 order permitting the taking of Deckers hair.
We explicitly addressed this claim and rejected it for the reasons stated in
the preceding paragraph. See Johnson, 693 N.E.2d at 947. By the
time of Johnsons post-conviction appeal, there was no real dispute that an order
allowing the State to take Deckers hair samples had been issued, although the
order itself had not been located. See id. at 947 n.7.
The only development since then is Johnsons having located a copy of the
order on microfilm in the Madison County clerks office. But actually locating
an order, the existence of which was not disputed, does not provide new
a basis for relief to Johnson. We thoroughly considered the merits of
this claim in the first post-conviction appeal and decided the post-conviction court had
been correct in denying relief.
The doctrine of res judicata prevents the repetitious litigation of claims, like Johnsons, that have already been decided. See, e.g., Wrinkles v. State, 776 N.E.2d 905, 908 (Ind. 2002); Daniels v. State, 741 N.E.2d 1177, 1184 (Ind. 2001). Johnson has not shown a reasonable possibility he is entitled to relief on this claim.
2. Dismissal of petition for writ of habeas corpus by federal district court. Johnson also asks that we reconsider his case because he did not receive a review on the merits in the federal courts. True, when Johnsons petition for a writ of habeas corpus was filed one day late in the federal district court, that court dismissed the petition. The federal appellate court affirmed the dismissal, indicating there was no basis under federal law to excuse the late filing. Johnson v. McBride, 381 F.3d 587. Nonetheless, the Seventh Circuit discussed Johnsons claim in detail before concluding, as we have, that Johnsons locating the 1986 order is not a new claim of any sort, and that he had already litigated this claim in state courts, and had enjoyed thorough consideration by the Supreme Court of Indiana on both direct appeal and collateral attack. Id. at 588, 591.
Despite the substantive review given him in federal court, Johnson contends we should
excuse his attorneys tardiness in federal court on grounds it was presumptively harmful.
To the extent Johnson asks us to second-guess the federal court on
a matter of federal procedure, we decline. To the extent Johnson argues
he is entitled to further review in state court because of the conduct
of his attorney in federal collateral proceedings, Johnson fails to state a cognizable
claim. See Graves v. State, 823 N.E.2d 1193, 1195-97 (Ind. 2005)
(discussing the standard in the state system for reviewing counsels performance in post-conviction
3. Request to test hair. In his reply, Johnson requests, for the first time, permission for DNA testing of the hair found on the glove and perhaps of Deckers hair. Indiana state courts have long provided access for numerous types of expert and scientific evidence, including DNA testing, to those accused or convicted of crimes. See Williams v. State, 791 N.E.2d 193, 195 (Ind. 2003). Since 2003, state statutes have allowed a person convicted of murder to request forensic DNA testing. See I.C. § 35-38-7-1 & 5. As the person requesting the testing, Johnson must show, among other things, the evidence to be tested is material to identifying him as a perpetrator and a reasonable probability that he would not have been convicted or would not have received as severe a sentence if exculpatory results from the testing had been available before trial. I.C. §§ 35-38-7-8 & 9.
Johnson proposes that DNA testing should be performed on the hair in this case because DNA testing is more sophisticated than the microscopic examination performed in 1986. That may be true, but Johnson does not explain how he meets either of the two requirements stated above. He has admitted being a perpetrator: he admitted breaking into Hutslars home, taking articles from it, stepping on Ms. Hutslar while she lay on the floor, and setting her house on fire. He also chose not to mention any accomplices until after he had been convicted and sentenced to death. Additional information about the hair found on the glove or about Deckers hair (if it is even available) simply would not affect Johnsons culpability for the crimes or the punishment the jury unanimously recommended. No matter the results of any DNA test, Johnson makes no argument that the results would be exculpatory.
Johnson has not shown a reasonable possibility of relief with respect to his
locating the 1986 order and makes no colorable argument for DNA testing.
4. Challenge to lethal injection as a method of execution. Both
the U.S. Constitutions Eighth Amendment and the Indiana Constitutions Article 1, Section 16,
prohibit cruel and unusual punishment. Indiana administers the death penalty by lethal
injection. See I.C. § 35-38-6-1. Johnson contends this method of execution
creates an unacceptable risk of unnecessary pain and suffering in violation of the
We have previously rejected the claim that lethal injection is a per se
cruel and unusual punishment. Ritchie v. State, 809 N.E.2d 258, 262-63 (Ind.
2004); Moore v. State, 771 N.E.2d 46, 55-56 (Ind. 2002). In Moore,
we observed the Eighth Amendment requires an execution "be performed in a manner
that avoids unnecessary or wanton infliction of pain" but concluded lethal injection
does not constitute wanton infliction of pain. Id. at 55-56. In
Ritchie, we discussed relevant authorities at some length and again concluded that lethal
injection does not run afoul of the constitutional prohibition. See 809 N.E.2d
at 262-63. Neither prisoner in those cases submitted any particular evidence showing
an unusual risk in their individual cases. Like them, Johnson does not
supply any evidence suggesting an unusual risk in his case.
Johnsons claim is more specific than those in Ritchie and Moore in that
he challenges the drug protocol that he says the Department of Correction uses
to administer lethal injections. Johnson sets forth in his papers the physiological
effects that he says these drugs have and contends they constitute unconstitutionally cruel
and unusual punishment. A number of courts have held that the same
or similar drug protocol does not violate the Eighth Amendment. See, e.g.,
Beardslee v. Woodford, 395 F.3d 1064, 1076 (9th Cir. 2005), cert. denied ___
U.S. ___, 125 S.Ct. 982 (2005); Cooper v. Rimmer, 379 F.3d 1029, 1031-33
(9th Cir. 2004); Reid v. Johnson, 333 F. Supp. 2d 543, 552-53 (E.D.
Va. 2004); State v. Webb, 750 A.2d 448, 454-56 (Conn. 2000), cert. denied,
531 U.S. 835 (2000); Sims v. State, 754 So. 2d 657, 666-68 (Fla.
2000), cert. denied, 528 U.S. 1183 (2000); AbdurRahman v. Bredesen, 2004 WL 2246227,
*15-18 (Tenn. Ct. App. 2004), permission to app. granted. But Johnson directs
us to no cases that have held such protocols violate the Eighth Amendment
and we have not identified any.
See footnote In view of the above, we
need not address the States argument that this claim is procedurally defaulted because
Johnson waited too long to raise it. Johnson has not shown a
reasonable possibility that he is entitled to relief.
The Clerk is directed to send a copy of this order to all
counsel of record; and to West Group for publication in the bound volumes
of this Courts decisions.
DONE AT INDIANAPOLIS INDIANA, this 16th day of May, 2005.
/s/ Randall T. Shepard
Chief Justice of Indiana
Shepard, C.J., and Dickson, Sullivan, Boehm, and Rucker, JJ., concur.