Appeal from the United States District Court for the Western District of Missouri.
The opinion of the court was delivered by: Jarvey, District Judge
Submitted: January 12, 2010
Before GRUENDER and SHEPHERD, Circuit Judges, and JARVEY,*fn1 District Judge.
Luther Johnson ("Johnson") appeals from the district court's*fn2 denial of his 28 U.S.C. § 2254 motion. For the following reasons, we affirm.
Petitioner Luther Johnson shot and killed Charles Watkins ("Watkins") on March 30, 1997. Johnson lived with, among others, his wife Carolyn Johnson ("Carolyn") and daughter LaShonda Johnson ("LaShonda"). LaShonda, age 15, had been romantically involved with Watkins; Johnson disapproved of the relationship. On March 30, 1997, Johnson had a cookout at his home with his wife, daughter, and several others. Watkins and his cousin, David Eddie Taylor ("Taylor"), came to Johnson's home during the cookout. The two knocked on the door, entered, and spoke to LaShonda. Johnson told them to leave, but they stayed after Carolyn said they were not causing problems. Watkins and Taylor then went out to the front porch. Johnson told them to leave again. Johnson locked the doors to the house and told everyone that Watkins and Taylor were not permitted inside the house. Johnson went to another room and got a gun. He took the gun to the front door and said to Watkins, "I told you to leave." Johnson shot Watkins, who later died.
Johnson testified that he and Watkins had problems before the shooting, stemming from the romantic relationship between Watkins and LaShonda. According to Johnson's testimony, he thought he had seen Watkins drive by Johnson's house on an earlier occasion holding his hand in the shape of a gun and mimicking the sound of gunshots. At another time, Johnson told Watkins he did not want Watkins seeing LaShonda. Following this encounter, Watkins and his friends followed Johnson, swearing, taunting, and threatening him. Johnson testified that Watkins said he should "smoke" Johnson. Several days later, Watkins asked Carolyn if she wanted Johnson out of the house and displayed what appeared to be a gun in his waistband; Carolyn told Johnson about this and warned him to be careful.
Johnson also testified that on the night of the shooting, he thought he saw Taylor conceal something in his pants while Taylor and Watkins were on the porch. According to Johnson's testimony, after Johnson locked the doors with Taylor and Watkins outside, he heard someone at the front door trying to get in. He got his shotgun, returned to the front door and yelled "Who is it?" and received no response. Johnson opened the door, and saw Watkins standing there with Taylor behind him. Upon seeing the gun, Watkins said, "If you pull that gun on me I should f--- you up." The two struggled over the screen door. Johnson then heard what sounded like a round being chambered, and he fired the shotgun.
II. PROCEDURAL BACKGROUND
A jury convicted Johnson of murder in the second degree and armed criminal action. On direct appeal, the Missouri Court of Appeals reversed because the trial court had failed to sua sponte instruct the jury on the issue of defense of premises.
The case proceeded to a bench trial on remand. During opening statements, defense counsel said:
You will hear from the defendant, you will hear from his wife . . .
We will show from our evidence that he was at his home and he didn't pursue the other man, he didn't chase him, this man made numerous threats. That will be our evidence. And the shooting occurred when the two men, at least one of them tried to break in. We will ask the court for a verdict of not guilty.
As Johnson was about to call his wife Carolyn as a witness at the beginning of his case-in-chief, the ...