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JOHNSON v. PAGE

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION


July 8, 1997

ERIC JOHNSON, Petitioner,
v.
THOMAS PAGE, Warden, Menard Correctional Center, Respondent.

The opinion of the court was delivered by: ASPEN

MEMORANDUM OPINION AND ORDER

 MARVIN E. ASPEN, Chief Judge:

 After a jury trial in January 1992, Petitioner Eric Johnson was convicted of two counts of first-degree murder and one count of attempted armed robbery. Johnson now seeks a writ of habeas corpus to overturn his convictions and the resulting sentences. For the reasons discussed below, we deny the petition.

 I. Background

 According to the order affirming the petitioner's convictions on direct appeal, *fn1" in December 1989, Johnson's codefendant, James Gibson, hatched a robbery plan and eventually enlisted the help of Johnson. See People v. Johnson, No. 1-92-1724, at 2 (May 17, 1994) (unpublished order attached to Pet.'s Resp., Ex. A). Gibson targeted an insurance salesman, Lloyd Benjamin, who went door-to-door in the neighborhood to collect premiums from customers. Id.; see also Def.'s Appeal Br. at 5. *fn2" On December 20, 1989, Gibson shared this plan with Johnson (among others) and even revealed that Gibson would shoot Benjamin if the victim panicked. See Johnson at 2. Two days later, Gibson asked Johnson to serve as the look-out for the robbery in exchange for $ 50; Johnson agreed, knowing that Gibson was carrying a handgun. Id. at 2-3.

 While Johnson stood by an alleyway and watched, Gibson approached Benjamin to carry out the robbery. Id. at 2-3. Johnson then saw Gibson shoot Benjamin, and Johnson fled. Id. at 3. Apparently, a neighborhood resident, Hunter Wash, had "walked out into the alley and came upon the armed robbery in progress," and Gibson shot Benjamin and then Wash. Def.'s Leave to Appeal Br. at 2-3. Eventually, Gibson and Johnson were arrested. A jury convicted Johnson of two counts of first-degree murder and one count of attempted armed robbery. The Illinois Appellate Court affirmed, and the state supreme court denied leave to appeal. *fn3" Petitioner now raises several arguments in support of the habeas petition, and we address them in turn.

 II. Discussion

 A. Accountability

 First, Johnson appears to argue that insufficient evidence supports finding that he was accountable for the two murders. However, the petitioner failed to raise this claim on direct appeal, see Def.'s Appeal Br.; Def.'s Appeal Reply Br., and thus the claim is procedurally defaulted. See Coleman v. Thompson, 501 U.S. 722, 750, 115 L. Ed. 2d 640, 111 S. Ct. 2546 (1991). Even if not defaulted, the petitioner's contention that he was not accountable for the murders is meritless.

 In a federal habeas proceeding, we review a state conviction against a claim of insufficient evidence by asking "whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979) (emphasis in original); Chandler v. Richards, 935 F.2d 915, 917 (7th Cir. 1991). Under Illinois law, a defendant is accountable for another's criminal conduct if,

 

(a) Having a mental state described by the statute defining the offense, . . . (c) Either before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense.

 ILL. REV. STAT. ch. 38, P 5-2(a), (c) (1989) (now codified as 720 ILCS 5/5-2(a), (c)). The accountability statute codifies the "common-design rule," which provides

 

where two or more persons engage in a common criminal design or agreement, any acts in the furtherance thereof committed by one party are considered to be the acts of all parties to the common design and all are equally responsible for the consequences of such further acts.

  People v. Terry, 99 Ill. 2d 508, 460 N.E.2d 746, 749, 77 Ill. Dec. 442 (Ill. 1984) (quoting People v. Kessler, 57 Ill. 2d 493, 315 N.E.2d 29 (1974)). Thus, "an accomplice can be held accountable for murder even without a showing of an intent to kill." Id.

 In light of the facts found in the state court proceedings, Johnson's murder convictions were based on sufficient evidence. Johnson knew that Gibson was carrying a handgun and that Gibson had announced the possibility that it would be used. Even more fundamentally, Johnson agreed to help Gibson commit the armed robbery, and Gibson's murder of the two victims was in furtherance of the armed robbery. Under Illinois law, Johnson's intent to help Gibson with the armed robbery rendered the petitioner accountable for Gibson's conduct in furtherance of the armed robbery. Accordingly, to the extent the petitioner challenges the jury's verdicts as to the murder counts, sufficient evidence supported the convictions based on accountability.

 B. Mandatory Life Sentences

 Rather than challenge the sufficiency of the evidence supporting the murder convictions, it appears that the petitioner's primary attack is directed against the mandatory life sentences imposed for the two murders. At the time of Johnson's sentencing, Illinois law provided that "if the defendant . . . is found guilty of murdering more than one victim, the court shall sentence the defendant to a term of natural life imprisonment." ILL. REV. STAT. ch. 38, P 1005-8-1(1)(c). According to the petitioner, the Illinois Appellate Court misinterpreted P 1005-8-1(1)(c) by holding that murder convictions based on accountability, rather than direct personal, meet the requirement of being "found guilty of murdering more than one victim." An error of state law interpretation, *fn4" however, does not by itself justify federal habeas relief, which requires an error of federal law. See ยง 2254(a). *fn5"

 C. Eighth Amendment

 Lastly, the petitioner maintains that life imprisonment without the possibility of parole is so disproportionate to his criminal conduct that the sentence violates the Eighth Amendment's bar against cruel and unusual punishment. However, in light of the other sentences that have satisfied the "exceedingly narrow proportionality element" of the Eighth Amendment, we hold that Johnson's life imprisonment term for two murders does not violate the Cruel and Unusual Punishment Clause. See Holman v. Page, 95 F.3d 481, 485 (7th Cir. 1996) (explaining that majority in Harmelin v. Michigan, 501 U.S. 957, 115 L. Ed. 2d 836, 111 S. Ct. 2680 (1991), agreed that "mandatory life sentence for a first-time felon convicted of possessing 650 grams of cocaine" satisfied Eighth Amendment). *fn6"

 III. Conclusion

 For the reasons stated above, we deny the petition for a writ of habeas corpus. In addition, we deny the petitioner's motion for appointment of counsel as moot. It is so ordered.

 MARVIN E. ASPEN

 United States District Judge

 Dated 7/8/97


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