Elliott Rod Johnson, Petitioner-appellant, v. James A. Lynaugh, Director, Texas Department of Corrections,respondent-appellee, 821 F.2d 224 (5th Cir. 1987)

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US Court of Appeals for the Fifth Circuit - 821 F.2d 224 (5th Cir. 1987) June 23, 1987

Elliott Rod Johnson, pro se.

James Rebholz, New Orleans, La., for petitioner-appellant.

Jim Mattox, Atty. Gen., Paula C. Offenhauser, Asst. Atty. Gen., Austin, Tex., for respondent-appellee.

Appeal from the United States District Court for the Eastern District of Texas.

On Application for a Certificate of Probable Cause, for Permission to Appeal In Forma Pauperis, and for Stay of Execution.

Before CLARK, Chief Judge, POLITZ and WILLIAMS, Circuit Judges.


BY THE COURT:

In this pro se, successive, delayed petition, Elliott Rod Johnson asserts four grounds of constitutional error in his trial for capital murder at which Johnson received the death penalty. The chronology of this case is as follows:Based upon an opinion dealing with every issue raised by Johnson in this successive petition, the district court denied habeas corpus relief for abuse of the writ under Rule 9(b) of the Rules Governing Section 2254 Cases in the United States District Court for failure of Johnson to assert in his prior petition the new grounds now raised. For the reasons stated by the district court, we agree with the denial of certificate of probable cause.

Alternatively, the district court considered each of the four issues sought to be raised by Johnson and found each to be legally, procedurally or factually lacking in merit. We have examined each of them and agree that they are without merit. We would add only the following brief comments. The prosecutor did not characterize Johnson's contentions as "silly little technicalities." The phrase was part of an urging of the jury to vigorously enforce the law. It was used in reference to some other unidentified cases in which criminals were not convicted because of some "silly little technicality involving searches or confessions or whatever." We agree with the district court that Johnson has made no showing that this remark deprived him of a fundamentally fair trial. With regard to the constitutional necessity for the appointment of a special prosecutor, we would add that Johnson's contention is based on the attenuated claim that a partner of a lawyer representing a co-defendant, who was tried separately from Johnson, somehow caused prejudice to Johnson by accepting employment as an assistant district attorney. We agree that Johnson's claim of constitutional error is frivolous. Finally, it could not possibly be constitutionally prejudicial to Johnson for the court to require an attorney to describe to the court his true experience in handling criminal cases to test Johnson's false claim that counsel was so inexperienced he could not furnish adequate representation.

For the reasons stated above, the application of Elliott Rod Johnson for permission to appeal in forma pauperis is GRANTED. The application for a certificate of probable cause is DENIED. The application for a stay of the order of the 252nd Judicial District Court of Jefferson County, Texas, setting the execution of Petitioner Elliott Rod Johnson for June 24, 1987, is DENIED.