Deandre Johnson v. Chadwick Dotson

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 23-6186
DEANDRE JOHNSON,
Petitioner - Appellant,
v.
CHADWICK DOTSON,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern District of Virginia, at
Norfolk. Raymond A. Jackson, Senior District Judge. (2:20-cv-00474-RAJ-LRL)
Submitted: August 12, 2024 Decided: August 15, 2024
Before NIEMEYER and KING, Circuit Judges, and MOTZ, Senior Circuit Judge.
Vacated and remanded by unpublished per curiam opinion.
Deandre Johnson, Appellant Pro Se. Liam Alexander Curry, OFFICE OF THE
ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Deandre Johnson appeals from the district court’s final order and judgment adopting
the magistrate judge’s report and recommendation and dismissing his 28 U.S.C. § 2254
petition. We previously granted a certificate of appealability on the following issue:
Whether the magistrate judge’s finding that Johnson’s ineffective assistance of appellate
counsel claims were unexhausted and procedurally defaulted is debatable or wrong. After
further briefing, we vacate the district court’s final order and judgment and remand for
further proceedings.
The Commonwealth asserts that Johnson never raised his ineffective assistance of
appellate counsel claims in the district court. But the record does not bear this out. After
Johnson filed his § 2254 petition, he moved on May 19, 2021, to supplement the petition
by incorporating the state habeas petition. (Doc. 11).∗ The state habeas petition, filed in
the Supreme Court of Virginia, included the ineffective assistance of appellate counsel
claims, which the court proceeded to decide on the merits. In the motion to supplement,
Johnson added claims that appellate counsel was ineffective by: (1) presenting claims on
direct appeal that were not raised in the trial court; (2) refusing to remove himself; and
(3) failing to raise the following issues that were raised in the trial court: (a) the
prosecution did not exclude defendant’s theory that he never penetrated the victim and his
DNA would be absent from the victim’s vagina; (b) the victim’s testimony was inherently
incredible; (c) the trial court refused to admit material impeachment evidence, violating
∗ “Doc.” citations are to entries on the district court’s docket.

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Chapman v. California, 386 U.S. 18 (1967); (d) the prosecution knowingly presented false
testimony, violating Napue v. Illinois, 360 U.S. 264 (1959); (e) the offense of assault and
battery is the lesser included offense of strangulation; and (f) the prosecution failed to show
the defendant had the necessary specific intent. (Doc. 11 at 2). The magistrate judge
granted Johnson’s motion to supplement and acknowledged that Johnson was seeking to
add additional ineffective assistance of counsel claims. (Doc. 24).
On November 8, 2021, Johnson moved to amend his § 2254 petition, expanding on
his ineffective assistance of appellate counsel claims raised in his May 19, 2021, motion to
supplement. Of relevance to this appeal, Johnson claimed appellate counsel was
ineffective for not arguing on appeal that the evidence did not exclude Johnson’s defense
that he entered the victim’s apartment with the intent to reconcile. (Doc. 25 at 2-3). The
magistrate judge granted the motion to amend. (Doc. 46). Because the magistrate judge
granted the motion to supplement and the motion to amend, Johnson’s ineffective
assistance of counsel claims were before the district court.
The Commonwealth further asserts that even if Johnson raised the ineffective
assistance of appellate counsel claims in the district court, he fails to seek a certificate of
appealability or present argument on the issue, and did not timely respond to the magistrate
judge’s report and recommendation. But this assertion lacks merit. In his informal brief,
Johnson asserted that his ineffective assistance of appellate counsel claims were properly
exhausted and demonstrated when these claims were presented to the Supreme Court of
Virginia.

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Inmates are generally provided the benefit of the mailbox rule, which considers
prisoner court filings to be “filed” as of the date that the documents are given to prison
authorities for mailing. See Houston v. Lack, 487 U.S. 266, 276 (1988); Rule 3(d) of the
Rules Governing Section 2254 Cases in the United States District Courts; see also Wall v.
Rasnick, 42 F.4th 214, 218 (4th Cir. 2022) (applying “mailbox rule” to objections to report
and recommendation). We conclude that Johnson timely objected to the magistrate judge’s
report and recommendation. The report and recommendation was dated June 14, 2022.
Johnson’s objections were dated June 21, 2022, within the 14-day period to file timely
objections.
The Commonwealth also addresses the merits of Johnson’s claims, asserting that
the Supreme Court of Virginia’s decision was not contrary to or an unreasonable
application of federal law. This Court may “disturb the state court’s ruling if it (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.’” Burr v. Jackson, 19 F.4th
395, 403 (4th Cir. 2021) (quoting 28 U.S.C. § 2254(d)).
But the Commonwealth did not address the merits of Johnson’s ineffective
assistance of appellate counsel claims in the district court. Although we “may affirm
judgments on alternative grounds to those relied upon by a lower court, this contemplates
that the alternative ground shall first have been advanced in that court, whether or not there
considered.” Skipper v. French, 130 F.3d 603, 610 (4th Cir. 1997) (citation omitted).

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While we may consider issues raised for the first time on appeal in exceptional
circumstances, this is not one of those cases. Id. Because Johnson exhausted his ineffective
assistance of appellate counsel claims when the Supreme Court of Virginia addressed those
claims on the merits, the district court should be the first to address them. Id. at 614.
Accordingly, for the reasons given above, the judgment of the district court is
vacated and the case remanded for proceedings consistent with this opinion. We deny
Johnson’s motion for equitable tolling and to expedite. We dispense with oral argument
because the facts and legal contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
VACATED AND REMANDED

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