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United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
No. 22-70005 FILED
July 18, 2023
____________
Lyle W. Cayce
Matthew Johnson, Clerk
Petitioner—Appellant,
versus
Bobby Lumpkin, Director, Texas Department of Criminal Justice,
Correctional Institutions Division,
Respondent—Appellee.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:19-CV-2310
______________________________
Before Elrod, Oldham, and Wilson, Circuit Judges.
Jennifer Walker Elrod, Circuit Judge:
Appellant Matthew Johnson files an application for a certificate of appealability and appeals the district court’s denial of his motion to recuse. We
DENY the application for a certificate of appealability and AFFIRM the
district court’s denial of the motion to recuse.
I
The facts underlying Johnson’s conviction are not in dispute. They
were recorded on a store surveillance camera and played for the jury at
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Johnson’s capital murder trial. In May 2012, Johnson entered a convenience
store and poured a bottle of lighter fluid over the head of Nancy Harris, a 76-
year-old store clerk. He then demanded money from Harris. As Harris attempted to open the cash register, Johnson stole two cigarette lighters, two
packages of cigarettes, and a ring from Harris’s finger.
Once Harris opened the cash register, Johnson took the money and
then set Harris on fire. As Harris frantically attempted to extinguish herself,
video recordings showed that Johnson “calmly” walked out of the store. Ex
parte Johnson, WR-87,574-01, 2019 WL 4317046, at *1 (Tex. Crim. App.
Sept. 11, 2019). Police officers arrived at the convenience store soon after
and extinguished the flame. Aided by descriptions given by Harris and neighborhood residents, the police quickly apprehended Johnson. Because of the
incident, Harris suffered second-to-fourth degree burns over 40% of her
body. She died five days later.
Johnson was indicted for intentionally causing the death of Harris by
setting her on fire during a robbery. The jury found him guilty of capital murder as alleged in the indictment. At the punishment stage of his trial, the jury
unanimously determined that: (1) Johnson presented future danger to society; and (2) there were insufficient mitigating circumstances to warrant a life
imprisonment rather than a death sentence. Accordingly, Johnson was sentenced to death. Tex. Code Crim. Pro. art. 37.071. The Texas Court of Criminal Appeals affirmed his conviction and sentence, Johnson v. State, No. AP-
77,030, 2015 WL 7354609, at *1 (Tex. Crim. App. Nov. 18, 2015), and the
United States Supreme Court denied his petition for certiorari, Johnson v.
Texas,
579 U.S. 931 (2016). Johnson challenged the validity of his conviction
and sentence in a state habeas proceeding, and the Texas Court of Criminal
Appeals denied relief. Ex parte Johnson,
2019 WL 4317046, at *3.
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Johnson then petitioned for habeas relief in federal district court. During the pendency of his federal habeas petition, Johnson filed a motion to
recuse Judge Ada Brown, alleging that the decisions she made would cause a
reasonable person to “harbor doubts about [her] impartiality.” Trevino v.
Johnson, 168 F.3d 173, 178 (5th Cir. 1999) (citation and quotation marks omitted). The district court denied habeas relief, the motion to recuse, and the
application for a certificate of appealability.
II
Before this court, Johnson files an application for a certificate of appealability and appeals the district court denial of his motion to recuse.
A
Under the Antiterrorism and Effective Death Penalty Act, a state
court prisoner must obtain a certificate of appealability before appealing a
federal district court’s denial of habeas relief. 28 U.S.C. § 2253(c)(1)(A). To
obtain a certificate of appealability, the petitioner must demonstrate that
“reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Miller-El v. Cockrell,
537 U.S. 322, 338
(2003) (citation and quotation marks omitted). The determination “requires
an overview of the claims in the habeas petition and a general assessment of
their merits” but not “full consideration of the factual or legal bases adduced
in support of the claims.”
Id. at 336; see also Buck v. Davis,
580 U.S. 100, 115
(2017).
As background, to render a death sentence under Texas law, the State
has the burden to prove beyond a reasonable doubt that “there is a probability
that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.” Tex. Code Crim. Proc. art.
37.071(2)(b)(1); Druery v. Thaler, 647 F.3d 535, 546 (5th Cir. 2011). If the
jury finds future dangerousness, it must then consider whether there are suf-
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ficient mitigating circumstances to warrant a sentence of life imprisonment
rather than a death sentence. Tex. Code Crim. Proc. art. 37.071(2)(e)(1).
At the sentencing stage of Johnson’s trial, several witnesses testified
regarding Johnson’s criminal history. A police officer and Johnson’s ex-girlfriend testified about an incident in which Johnson attempted to break into
an apartment where his girlfriend and her children were living. When he
failed to break in, he set the back porch of the apartment on fire. Another
woman testified about a separate incident where Johnson forced her out from
her pickup truck, threw her to the ground, and drove off. And several police
officers testified that Johnson has a history of aggravated assault, theft, and
evading arrests. After deliberation, the jury answered “yes” to the future
dangerousness question and “no” to the mitigation question. Thus, it sentenced Johnson to death.
In his habeas petition before the district court, Johnson challenged the
constitutionality of Texas’s future dangerousness and mitigation special issues. The district court rejected Johnson’s constitutional challenges. Here,
Johnson contends he is entitled to a certificate of appealability because reasonable jurists would debate the district court’s determination that Texas’s
future dangerousness and mitigation issues are constitutional. We address
each issue in turn.
1
As to future dangerousness, Johnson contends that he is entitled to
habeas relief because: the Texas capital sentencing statute’s future dangerousness provision is unconstitutionally vague; jury predictions of future dangerousness are inherently unreliable; and his jury was wrong when it predicted he would be violent in the future.
First, Johnson contends that Texas’s capital sentencing statute is unconstitutionally vague because it fails to define “probability” and “criminal
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acts of violence.” Tex. Code Crim. Proc. art. 37.071(2)(b)(1). No reasonable
jurist would debate the correctness of the district court’s determination on
this issue. Buck, 580 U.S. at 115–16. The Supreme Court has held that
Texas’s capital punishment scheme that asks “‘whether there is a probability
that the defendant would commit criminal acts of violence that would constitute a continuing threat to society’ is not unconstitutionally vague.” Tuilaepa
v. California, 512 U.S. 967, 974 (1994) (quoting Jurek v. Texas,
428 U.S. 262,
274–76 (1976)). Likewise, in Woods v. Johnson, this court applied the Supreme Court’s holding in Jurek that “reject[ed] the contention that the [future dangerousness] issue is impermissibly vague.”
75 F.3d 1017, 1034 (5th
Cir. 1996). Since then, we have repeatedly re-affirmed the same holding. See,
e.g., Sprouse v. Stephens,
748 F.3d 609, 622 (5th Cir. 2014) (“Texas does not
run afoul of [Supreme Court precedent] by not expressly defining these
terms.”) (citation omitted); Leal v. Dretke,
428 F.3d 543, 553 (5th Cir. 2005)
(listing numerous Fifth Circuit opinions rejecting similar arguments).
Next, Johnson argues that jury prediction of future dangerousness is
inherently unreliable, and so capital-punishment schemes that rely on such
predictions are arbitrary and thus unconstitutional. Johnson contends that
even though the Supreme Court explicitly upheld Texas’s future dangerousness question in Jurek and Barefoot, the reasoning of those decisions “[has]
been entirely eroded” in light of new social science research showing the inaccuracy of jury predictions. Jurek, 428 U.S. 262; Barefoot v. Estelle,
463 U.S.
880 (1983), superseded by statute on other grounds,
28 U.S.C. § 2253(c).
In Jurek, the Supreme Court observed that although determining future dangerousness is “difficult,” it “does not mean that it cannot be
[done].” Jurek, 428 U.S. at 274–75. Highlighting the prevalence of similar
determinations, the Court noted that jury prediction of future dangerousness
is “no different from the task performed countless times each day throughout
the American system of criminal justice.” Id. at 276. For example, the Court
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observed that similar predictions are made when government officials decide
whether to admit a defendant to bail or whether a prisoner should be released
on parole. Id. at 275. Consequently, the Court rejected the petitioner’s argument and held that “Texas’ capital-sentencing procedures . . . do not violate the Eighth and Fourteenth Amendments.” Id. at 276. As Johnson himself conceded, seven years later, the Supreme Court reaffirmed its holding in
Jurek that Texas’s future dangerousness issue does not violate the Eighth
Amendment. See Barefoot, 463 U.S. at 899. Johnson contends, however, that
the “factual and theoretical foundations” of Jurek and Barefoot “have been
entirely eroded” by subsequent social science research, which demonstrated
that jury predictions of future dangerousness are entirely unreliable.
But this argument is plainly foreclosed by our decision in Buntion v.
Lumpkin, 982 F.3d 945 (5th Cir. 2020). In Buntion, we considered the same
arguments on this issue that were made by the same lawyers. We addressed
the argument that the Texas Code is “unconstitutional because several studies indicate that juries’ dangerousness predictions usually prove untrue,”
and concluded that the argument was “substantively meritless” because
“the Supreme Court has twice upheld the exact same provision.”
Id. at 948–
50. Faced with unfavorable Supreme Court cases, Buntion (like Johnson)
argued that new social science studies “entirely undermine[d] the factual
predicate” underlying those cases, and so he invited the court to “ignore”
those precedents.
Id. at 950. The Buntion panel correctly refused to do so,
noting that only the Supreme Court alone can overrule one of its precedents.
Id. (citing State Oil Co. v. Khan,
522 U.S. 3, 20 (1997)). Given our holding in
Buntion controls this issue, no “reasonable jurists would find the district
court’s assessment” on this issue “debatable or wrong.” Miller-El,
537 U.S.
at 338; Buck, 580 U.S. at 115–16.
Finally, Johnson argues that his sentence should be vacated because
the jury was wrong when it predicted that he would be violent in the future.
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He noted that he “has committed no violent acts while incarcerated,” and
“[h]is impeccable disciplinary record demonstrates that he poses no threat
to guards or fellow inmates.” As legal authority, he cites the Supreme Court
case in Johnson v. Mississippi for the proposition that a death sentence should
be vacated when it was “predicated, in part, on a . . . judgment that is not
valid now, and was not valid when it was entered.” 486 U.S. 578, 585 n.6
(1988). Because his sentence was predicated on the future dangerousness
assessment, which he says has been proven wrong by his peaceful behavior in
prison, he contends that his sentence should be vacated in accordance with
Johnson v. Mississippi.
This argument is likewise not debatable for the same reasons seen in
Buntion. See Buck, 580 U.S. at 115–16. Like Johnson, Buntion argued that his
sentence should be vacated because Johnson v. Mississippi “stands for the
proposition that any sentence based on a factual inaccuracy must be vacated”
and his peaceful behavior in prison evinced that factual inaccuracy. Buntion,
982 F.3d at 950–51. We rejected that argument in Buntion for two independent reasons. First, we observed that the petitioner misinterpreted Johnson v.
Mississippi because “‘[t]he Supreme Court has never intimated that the factual correctness of the jury’s prediction on the issue of future dangerousness
. . . bears upon the constitutionality’ of a death sentence.” Id. (alterations in
original) (quoting Lincecum v. Collins,
958 F.2d 1271, 1281 (5th Cir. 1992)).
Second, we noted that the sentence imposed was not based on factual inaccuracy because the jury was not asked to determine whether Buntion “would
in fact engage in future violence.” Id. at 951. Rather, the jury was asked
whether “there is a probability” that he would commit criminal acts of violence. Id. (quoting Tex. Code Crim. Proc. art. 37.0711 § 3(b)(2)). Consequently, “the fact that Buntion [] behaved peacefully while in prison did not
disprove the jury’s probability calculation.” Id.
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Even assuming arguendo that reasonable jurists could debate the merit
of Johnson’s argument, it is not debatable that the argument is barred by
Teague’s non-retroactivity doctrine. Teague v. Lane, 489 U.S. 288 (1989).
Under Teague, “a new rule of law [should] not be applied on collateral review
to cases that became final prior to the announcement of the new rule.” Burdine v. Johnson,
262 F.3d 336, 342 (5th Cir. 2001) (en banc) (citing Teague,
489 U.S. at 310). Here, Johnson is advocating for a new extension of Johnson
v. Mississippi. As the district court observed, Johnson did not identify any
courts that have adopted his broad reading of that case. To the contrary,
controlling caselaw from the Fifth Circuit and the Supreme Court has rejected his argument and upheld the constitutionality of the Texas Code’s future dangerousness provision.
Thus, given the multiple on-point precedents and Teague’s non-retroactivity bar, no reasonable jurists could debate the correctness of the district
court’s determination on this issue. See Sprouse, 748 F.3d at 609; Buntion,
982 F.3d 945; Buck, 580 U.S. at 115–16.
2
In addition to challenging the future dangerousness issue, Johnson
also challenges the constitutionality of Texas’s mitigation issue. Before imposing a death sentence, the Texas Code requires the jury to determine
whether there were sufficient mitigating circumstances to warrant lowering
the punishment to a life sentence. Johnson contends that Texas’s failure to
impose the burden of proof on the State to show that there were insufficient
mitigating circumstances beyond a reasonable doubt violates the Supreme
Court’s holding in Apprendi and Ring. The Supreme Court in Apprendi held
that “any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and
proved beyond a reasonable doubt.” Apprendi v. New Jersey, 530 U.S. 466,
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476 (2000) (citation and quotation marks omitted); see also Ring v. Arizona,
536 U.S. 584, 602 (2002) (“If a State makes an increase in a defendant’s authorized punishment contingent on the finding of a fact, that fact—no matter
how the State labels it—must be found by a jury beyond a reasonable
doubt.”). Johnson argues that because the insufficient-mitigating-circumstances finding is necessary for the death sentence, the prosecution should
be required to prove that finding beyond reasonable doubt.
A “general assessment” of this argument, however, indicates that it
is foreclosed by several circuit precedents. Miller-El, 537 U.S. at 336. In Rowell v. Dretke, for example, we noted the “important distinction between ‘facts
in aggravation of punishment and facts in mitigation.’”
398 F.3d 370, 378
(5th Cir. 2005) (quoting Apprendi,
530 U.S. at 490 n.16). The State needs to
prove facts in aggravation beyond reasonable doubt. As to facts in mitigation,
however, “no Supreme Court or Fifth Circuit authority requires the State to
prove the absence of mitigating circumstances beyond a reasonable doubt.”
Id. at 378. In addition, “[n]o Supreme Court or Circuit precedent constitutionally requires that Texas’s mitigation special issue be assigned a burden of
proof.” Id.; see also Scheanette v. Quarterman,
482 F.3d 815, 828 (5th Cir.
2007) (“We have specifically held that the Texas death penalty scheme did
not violate either Apprendi or Ring by failing to require the state to prove beyond a reasonable doubt the absence of mitigating circumstances.”);
Sprouse,
748 F.3d at 623 (quoting Scheanette v. Quarterman and affirming the
same holding).
Each of Johnson’s arguments for the issuance of a certificate of appealability is foreclosed by on-point binding precedent that “fits like a
glove.” Fowler v. United States, 563 U.S. 668, 672 (2011). Accordingly, no
“reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Miller-El,
537 U.S. at 338; Buck, 580
U.S. at 115–16.
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B
Next, we address the district court’s denial of Johnson’s motion to
recuse. A district judge’s refusal to recuse is reviewed for abuse of discretion.
Trevino, 168 F.3d at 178. “Any . . . judge . . . shall disqualify [her]self in any
proceeding in which [her] impartiality might reasonably be questioned.”
28
U.S.C. § 455(a). The relevant inquiry is whether a “reasonable man, were
he to know all the circumstances, would harbor doubts about the judge’s impartiality.” Trevino,
168 F.3d at 178 (quoting Health Servs. Acquisition Corp.
v. Liljeberg,
796 F.2d 796, 800 (5th Cir. 1986)) (internal quotation marks
omitted). A “reasonable person standard in the recusal context contemplates a ‘well-informed, thoughtful and objective observer, rather than the
hypersensitive, cynical, and suspicious person.’”
Id. at 179 (quoting United
States v. Jordan,
49 F.3d 152, 156 (5th Cir. 1995)) (internal quotation marks
omitted).
Here, Johnson alleges that Judge Ada Brown’s decisions “would
cause a reasonable person, knowing all the circumstances, to harbor doubts
about the district court’s impartiality.” To support his allegation, Johnson
points to two specific examples of her bias based upon her legal rulings.
First, Johnson contends that Judge Brown impermissibly “truncate[d]” the time his counsel had to investigate and prepare legal arguments.
Under 28 U.S.C. § 2244(d)(1), “[a] 1-year period of limitation shall apply to
an application for a writ of habeas corpus by a person in custody pursuant to
the judgment of a State court.” Because Johnson’s state habeas petition was
denied on September 11, 2019, his 1-year period of limitation ended on September 11, 2020.
Shortly after the denial of his state habeas petition, Johnson’s state
habeas counsel filed a motion to the federal district court, requesting federal
habeas counsel. On October 23, 2019, the court issued an order appointing
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the present counsel to represent Johnson. In that same order, the court instructed Johnson to file his habeas petition by May 1, 2020. That deadline,
Johnson alleges, contradicts 28 U.S.C. § 2244(d) because it was “four-anda-half months earlier than the applicable deadline,” and “[t]he language of
the federal statute does not permit a federal court to shorten” that deadline.
Based on Judge Brown’s reluctance to extend his filing deadline to September 11, 2020 (i.e., the full period allowed by the statute), Johnson contends
that Judge Brown is biased.
But Johnson cited no governing legal authority recognizing the right
to delay his briefing until the final day of AEDPA’s one-year statute of limitations. To the contrary, it is firmly established that a district court has “the
inherent authority to manage their dockets and courtrooms with a view toward the efficient and expedient resolution of cases.” Dietz v. Bouldin, 579
U.S. 40, 47 (2016). In addition, the Supreme Court has held that “judicial
rulings alone almost never constitute a valid basis for a bias or partiality motion.” Liteky v. United States,
510 U.S. 540, 555 (1994). Accordingly, we
hold that “a reasonable person” who knows “all the circumstances” would
not “harbor doubts about the district court’s impartiality” on this basis. Trevino,
168 F.3d at 178; Buck, 580 U.S. at 115–16.
Johnson also argues that the district court showed bias when it ordered
his attorneys to explain why they should not be sanctioned for making arguments that have been “consistently rejected by the Fifth Circuit for decades.” In response to that order, Johnson asserted that his attorneys “have
a duty to raise all meritorious claims in [his] federal habeas petition even if
the Supreme Court or [the Fifth Circuit] has yet to articulate a legal basis for
those claims.” (citing United States v. Garza-De La Cruz, 16 F.4th 1213, 1215
(5th Cir. 2021) (“But preserving one’s rights just in case is not just reasonable. Failure to do so risks forfeiting the right altogether.”)). Because Johnson
believes that the court’s order was unwarranted, he asserts that Judge
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Brown’s “threatening to sanction [his] attorneys for raising a meritorious
claim suggest the district court harbored animus toward Johnson” and “intended to pressure Counsel to withdraw the second claim in Johnson’s Petition.”
In its order, the district court explained that even though it is generally
acceptable for counsel to preserve claims, they nonetheless should
acknowledge adverse on-point circuit precedent. In failing to do so, the district court noted that Johnson’s counsel might be acting contrary to Rule
11(b)(2) of the Federal Rules of Civil Procedure, which requires counsel to
certify that “the claims, defenses, and other legal contentions are warranted
by existing law or by a nonfrivolous argument for extending, modifying, or
reversing existing law or for establishing new law.” Given the district court’s
explanation, we hold that the district court did not abuse its discretion in
denying Johnson’s motion to recuse. These do not debatably give rise to a
claim for relief. Buck, 580 U.S. at 115–16.
…
Because an “overview of the claims in the habeas petition and a general assessment of their merits” indicates that no “reasonable jurists would
find the district court’s assessment of the constitutional claims debatable or
wrong,” we DENY Johnson’s application for a certificate of appealability.
Miller-El, 537 U.S. at 336, 338; Buck, 580 U.S. at 115–16.
As to the motion for recusal, no reasonable person who knows “all the
circumstances” would “harbor doubts about [the district court’s] impartiality.” Trevino, 168 F.3d at 178. Thus, we hold that the district court did not
abuse its discretion in denying Johnson’s motion to recuse. AFFIRMED.
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