Harabia Jabbar Johnson v. JEFF ZMUDA, Secretary of Kansas Department of Corrections

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
HARABIA JABBAR JOHNSON,
Petitioner - Appellant,
v.
JEFF ZMUDA, Secretary of Kansas
Department of Corrections,
Respondent - Appellee.
No. 21-3010
(D.C. No. 5:19-CV-03173-EFM)
(D. Kan.)
_________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY*
_________________________________
Before HARTZ, KELLY, and McHUGH, Circuit Judges.
_________________________________
Applicant Harabia Jabbar Johnson, a state prisoner proceeding pro se, requests a
certificate of appealability (COA) to challenge the denial by the United States District
Court for the District of Kansas of his application for relief under 28 U.S.C. § 2254. See
28 U.S.C. § 2253(c)(1)(A) (requiring COA to appeal final order in a habeas proceeding in
which the detention complained of arises out of process issued by a state court). We
deny his request and dismiss the appeal.
In February 1991 Applicant pleaded guilty to nine charges—including first-degree
murder, rape, aggravated kidnapping, and aggravated arson—arising from incidents on
* This order is not binding precedent except under the doctrines of law of the case, res
judicata, and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
FILED
United States Court of Appeals
Tenth Circuit
September 9, 2021
Christopher M. Wolpert
Clerk of Court
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July 21, 1990; July 31, 1990; and October 16, 1990. He turned 18 on September 7, 1990.
The sentences imposed in March 1991 are fully described by the opinion of the federal
district court. See Johnson v. Zmuda, No. 19-CV-3173-EFM, 2020 WL 7353864, at *1
(D. Kan. Dec. 15, 2020) (unpublished) (Johnson II) (brackets omitted). For our purposes,
suffice it to say (1) that the sentences for the offenses committed on July 31 included a
life sentence for first-degree murder, which was to be served consecutively to two
concurrent life sentences for aggravated kidnapping committed on the same date and
(2) his sentence for the only crime committed after he was 18 was a sentence of 15 years
to life for aggravated arson, to run consecutively to all other sentences.
In 2010 the Supreme Court in Graham v. Florida held that the Eighth Amendment
categorically forbids sentencing “a juvenile offender who did not commit homicide . . .
[to] life without parole.” 560 U.S. 48, 74 (2010). Although “[a] State is not required to
guarantee eventual freedom to a juvenile offender convicted of a nonhomicide crime[,]
. . . [it] must . . . give [such] defendants . . . some meaningful opportunity to obtain
release based on demonstrated maturity and rehabilitation.” Id. at 75. Two years later, in
Miller v. Alabama, the Court extended Graham to hold that even when the offense is
homicide, “the Eighth Amendment forbids a sentencing scheme that mandates life in
prison without possibility of parole for juvenile offenders.” 567 U.S. 460, 479 (2012)
(emphasis added). Four years after that, in Montgomery v. Louisiana, the Court declared
that “Miller announced a substantive rule that is retroactive in cases on collateral review.”
577 U.S. 190, 206 (2016).
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In February 2016 Applicant filed a motion with the Kansas state district court
seeking postconviction relief on several grounds, including that his sentence violated
Graham. The district court denied relief, and he appealed to the Kansas Court of
Appeals, also invoking Miller. That court affirmed, explaining that the motion was
untimely and that, in any event, Miller did not apply to Applicant’s sentence because he
was not sentenced to life in prison without the possibility of parole. See Johnson v. State,
No. 116,702, 2017 WL 4700131, at *3–4 (Kan. Ct. App. Oct. 20, 2017) (unpublished),
abrogated by White v. State, 421 P.3d 718 (Kan. 2018) (Johnson I). The Kansas Supreme
Court denied Applicant’s petition for review.
In September 2019 Applicant filed for relief under § 2254, renewing his argument
that “his sentence violates the Supreme Court’s decision in Miller and must be reversed.”
Dist. Ct. Doc. 2 at 3. Applicant also argued that the Kansas state district court had
improperly denied him an evidentiary hearing as part of the state postconviction
proceedings. The federal district court rejected both arguments, explaining that because
Applicant “will be first eligible for parole when he is approximately 62 years old[,] . . .
[his] assertion that his sentence is tantamount to life without the possibility of parole is
without merit,” and that no hearing was warranted since his claim could be resolved on
the record. Johnson v. Zmuda, No. 19-CV-3173-EFM, 2020 WL 7353864, at *4 (D. Kan.
Dec. 15, 2020) (unpublished) (Johnson II). The district court also denied Applicant’s
request for a COA. He now seeks a COA from this court.
A COA will issue “only if the applicant has made a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard requires “a
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demonstration that . . . includes showing that reasonable jurists could debate whether (or,
for that matter, agree that) the petition should have been resolved in a different manner or
that the issues presented were adequate to deserve encouragement to proceed further.”
Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks omitted). In other
words, the applicant must show that the district court’s resolution of the constitutional
claim was either “debatable or wrong.” Id.
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), provides
that when a claim has been adjudicated on the merits in a state court, a federal court can
grant habeas relief only if the applicant establishes that the state-court decision was
“contrary to, or involved an unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States,” or “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)(1), (2). As we have explained:
Under the “contrary to” clause, we grant relief only if the state court arrives
at a conclusion opposite to that reached by the Supreme Court on a question
of law or if the state court decides a case differently than the Court has on a
set of materially indistinguishable facts.
Gipson v. Jordan, 376 F.3d 1193, 1196 (10th Cir. 2004) (brackets and internal quotation
marks omitted). Relief is provided under the “unreasonable application” clause “only if
the state court identifies the correct governing legal principle from the Supreme Court’s
decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Id.
(brackets and internal quotation marks omitted). Thus, a federal court may not issue a
habeas writ simply because it concludes in its independent judgment that the relevant
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state-court decision applied clearly established federal law erroneously or incorrectly.
See id. Rather, “[i]n order for a state court’s decision to be an unreasonable application
of this Court’s case law, the ruling must be objectively unreasonable, not merely wrong;
even clear error will not suffice.” Virginia v. LeBlanc, 137 S. Ct. 1726, 1728 (2017) (per
curiam) (internal quotation marks omitted). To prevail, “a litigant must show that the
state court’s ruling was so lacking in justification that there was an error well understood
and comprehended in existing law beyond any possibility for fairminded disagreement.”
Id. (ellipsis and internal quotation marks omitted). Further, the Supreme Court has held
that review under § 2254(d)(1) and (2) “is limited to the record that was before the state
court that adjudicated the claim on the merits.” Cullen v. Pinholster, 563 U.S. 170, 181
(2011); see id. at 185 n.7. “AEDPA’s deferential treatment of state court decisions must
be incorporated into our consideration of a habeas petitioner’s request for COA.”
Dockins v. Hines, 374 F.3d 935, 938 (10th Cir. 2004).
In this court Applicant again asserts two grounds for relief. He first contends that
the district court erred in failing to grant an evidentiary hearing on his claim that his
sentence violated the Eighth Amendment. He contends that an evidentiary hearing was
required to “consider the [effect of the] COVID 19 crisis on African American prisoners
and to adjust the lowered life expectancy of prisoners in general.” Mot. for COA at 14.
He suggests that because the COVID-19 pandemic has lowered life expectancy for
prisoners such as himself, a sentence under which he is first eligible for parole at 62 is de
facto a sentence to life without the possibility of parole, and thus violated Miller and
Graham. But, as noted above, Pinholster restricts federal-court review under
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§ 2254(d)(1) and (2) to the record that was before the state court. See 563 U.S. at 181,
185 n.7. And to the extent that Applicant is arguing that the state court should have
conducted an evidentiary hearing on the lowered-life-expectancy issue, he has failed to
point to where he had argued that issue in state court; so the state court can hardly be
faulted for not conducting a hearing on the matter.
Turning to the substance of Applicant’s Eighth Amendment claim, it was
adjudicated on the merits by the Kansas Court of Appeals, see Johnson I, 2017 WL
470131, at *4, so his burden is, in essence, to show that Supreme Court precedent made it
unreasonable for the state court to reject the argument he made to that court. This he has
failed to do. He did not make the lowered-life-expectancy argument to the state court
(the case was resolved well before the Covid pandemic). He argued simply that his state-
court sentence was the equivalent of a life sentence without parole. But he does not
dispute that he will become eligible for parole at the age of 62. Nor does he dispute that
the grant or denial of parole would be decided on the basis of normal parole factors.
Our conclusion is supported by the Supreme Court decision in Virginia v.
LeBlanc, where a state prisoner challenged the Virginia state court’s determination that
his eligibility for possible release as part of the state’s “geriatric release program”
satisfied Graham’s “meaningful opportunity” requirement. LeBlanc, 137 S. Ct. at 1728
(internal quotation marks omitted). Under that program a prisoner who had served more
than 10 years in prison became eligible for parole at age 60. See id. Reversing the
Fourth Circuit, which had affirmed the district-court order granting the prisoner’s
application under § 2254, the Court emphasized the importance of AEDPA deference:
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The Court of Appeals for the Fourth Circuit erred by failing to accord the
state court’s decision the deference owed under AEDPA. Graham did not
decide that a geriatric release program like Virginia’s failed to satisfy the
Eighth Amendment because that question was not presented. And it was not
objectively unreasonable for the state court to conclude that, because the
geriatric release program employed normal parole factors, it satisfied
Graham’s requirement that juveniles convicted of a nonhomicide crime
have a meaningful opportunity to receive parole.
LeBlanc, 137 S. Ct. at 1728–29.
We conclude that no reasonable jurist could debate the correctness of the district
court’s denial of Applicant’s application for relief under § 2254.
We DENY a COA and DISMISS the appeal. We GRANT Applicant’s motion to
proceed in forma pauperis.
Entered for the Court
Harris L Hartz
Circuit Judge
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