Emanuel Johnson, Sr. v. Ricky D. Dixon, Secretary, Florida Department of Corrections, et al.

Emanuel Johnson, Sr., has been convicted and sentenced to die for two unrelated murders. Despite Mr. Johnson already having tried to discharge his postconviction counsel (CCRC-M) in state court due to an alleged conflict of interest, CCRC-M remained on his case and carried it into federal court. Faced with a history of his attorneys’ shortcomings, Mr. Johnson attempted to preserve all reasonably meritorious federal claims for relief by timely filing two pro se 28 U.S.C. § 2254 petitions (one per capital case). These petitions contained claims CCRC-M had previously failed to raise, and which Mr. Johnson had presented to the state court via pro se filings. When CCRC-M timely filed two § 2254 petitions (one per capital case) the following day, an administrative anomaly inadvertently resulted in the creation of four separate dockets (two per capital case). One docket per capital case contained Mr. Johnson’s pro se claims, and one contained the counseled claims. Thus, what should be one holistic 28 U.S.C. § 2254 action per capital case has instead been separated into two actions that are inextricably intertwined, not only in terms of the underlying convictions and sentences implicated, but also the claims and procedural arguments at issue. Further complicating matters, Mr. Johnson was appointed conflict-free counsel to represent him on the pro se dockets, because the district court recognized CCRCM’s performance was critical to resolution of the claims. However, even though the same issues regarding CCRC-M’s representation in state court were similarly applicable to the two counseled § 2254 petitions, conflict-free counsel was not substituted in those actions. Despite being repeatedly warned that continued docket separation would cause chaos and impede fair review of Mr. Johnson’s claims, the lower courts failed to take corrective action because the district court considered consolidation “unwieldy” and it would lay bare the conflict of interest possessed by prior state postconviction counsel. As a result, Mr. Johnson is in the uniquely harmful position of having exhausted § 2254 review in one habeas action per conviction and sentence— which is now being used to disadvantage his still-pending initial § 2254 proceedings challenging the same convictions and sentences. The questions presented are: 1. Under the threshold certificate of appealability standard, could reasonable jurists debate a district court’s refusal to consolidate inextricably intertwined initial 28 U.S.C. § 2254 dockets pertaining to the same underlying convictions and death sentences, where failure to do so frustrates his opportunity for a full, fair, and complete round of initial habeas review?