Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

U.S. EX REL. JOHNSON v. TALLY

April 27, 1999

UNITED STATES EX REL. THOMAS
v.
JOHNSON, PLAINTIFF, V. RODNEY TALLY, DEFENDANT.



The opinion of the court was delivered by: Alesia, District Judge.

    MEMORANDUM OPINION AND ORDER

Before the court is petitioner Thomas Johnson's petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the following reasons, Johnson's petition is denied.

I. BACKGROUND*fn1

Following a jury trial in Illinois state court, petitioner Thomas Johnson ("Johnson") was convicted of first degree murder. He was sentenced to a term of imprisonment of thirty-eight years for the murder conviction. Mark Kadish was Johnson's attorney at the preliminary hearing and arraignment, at trial, and at sentencing.

Johnson appealed, arguing that he was not proven guilty beyond a reasonable doubt and that the trial court erred in denying his pre-trial motion for comprehensive jury selection. (Resp't Ex. B.) Steven Clark represented Johnson on his direct appeal. On January 6, 1988, the Illinois Appellate Court rejected Johnson's arguments and affirmed his conviction and sentence. (Resp't Ex. A.)

On March 25, 1991, Johnson filed a pro se petition for post-conviction relief, asserting approximately nineteen grounds for relief. (Resp't Ex. C.) The State filed a motion to dismiss the petition. After a hearing at which Johnson was represented by attorney Valerie Panozzo — Gore, the circuit court dismissed Johnson's post-conviction petition.

Johnson appealed the circuit court's denial of his post-conviction petition, arguing that the petition was sufficient to withstand the State's motion to dismiss because the petition included a claim that the defense counsel rejected a plea offer made by the State without first communicating that offer to Johnson. (Resp't Ex. D.) Attorney Alan Goldberg represented Johnson on this appeal. On July 9, 1997, the Illinois Appellate Court affirmed the denial of Johnson's post-conviction petition. (Resp't Ex. E.) Johnson petitioned the Illinois Supreme Court for leave to appeal the appellate court's decision. (Resp't Ex. F.) On October 1, 1997, the Illinois Supreme Court denied Johnson's petition for leave to appeal. (Resp't Ex. G.)

On January 12, 1998, Johnson filed a pro se petition for habeas corpus (cited herein as "Pet'r Writ") pursuant to 28 U.S.C. § 2254, asserting several different claims for relief. Subsequently, Johnson filed a motion to supplement the record, which included a document entitled "Arguments for Relief" (cited herein as "Pet'r Supp. Argu."), in which Johnson asserted several additional claims for § 2254 relief. The court granted Johnson's motion to supplement the record, allowing Johnson to add the several additional claims.

On January 11, 1999, respondent filed an answer to Johnson's petition. Respondent argues that Johnson's petition should be denied with prejudice because Johnson's claims are procedurally barred, non-cognizable, and otherwise without merit.*fn2

II. DISCUSSION

A. Procedural default

Before addressing the merits of Johnson's § 2254 petition, the court must make sure that Johnson has (1) exhausted his state court remedies and (2) avoided procedurally defaulting his claims during the state court proceedings. Bocian v. Godinez, 101 F.3d 465, 468 (7th Cir. 1996). In this case, exhaustion is not at issue; respondent agrees that Johnson has exhausted his state court remedies. What is at issue is whether Johnson has procedurally defaulted many of his claims. Respondent argues that Johnson has.

Relevant to this case, there are three different ways that a petitioner can procedurally default his claims. These are (1) where the petitioner has completely failed to raise the claim in the state court system, McGowan v. Miller, 109 F.3d 1168, 1172 (7th Cir. 1997); (2) where the state court has declined to hear the merits of the petitioner's claim because of his failure to comply with a state procedural rule, Moore v. Parke, 148 F.3d 705, 708 (7th Cir. 1998); and (3) where the petitioner has failed to appeal a claim to the Illinois Appellate Court, Jenkins v. Gramley, 8 F.3d 505, 507 (7th Cir. 1993).

If a petitioner has procedurally defaulted a claim, the petitioner may only raise the claim in federal court via a petition for habeas corpus if the petitioner shows' either (1) that there is good cause for the default and actual prejudice therefrom or (2) that default would lead to a "fundamental miscarriage of justice." Bousley v. United States, 523 U.S. 614, 118 S.Ct. 1604, 1611, 140 L.Ed.2d 828 (1998); Steward v. Gilmore, 80 F.3d 1205, 1211 (7th Cir. 1996). One way of showing "good cause" for procedural default is "`to demonstrate that counsel's performance was so deficient as to violate the sixth amendment guarantee of effective assistance of counsel.'" Momient — EL v. DeTella, 118 F.3d 535, 541 (7th Cir. 1997) (quoting Morrison v. Duckworth, 898 F.2d 1298, 1300 n. 5 (7th Cir. 1990)).

The fundamental miscarriage of justice exception is a narrow exception that "requires a claim that the defendant be actually innocent of the crime for which he or she is imprisoned." Stewards, 80 F.3d at 1212. "Actual innocence" means factual innocence and not mere legal insufficiency. Bousley, 118 S.Ct. at 1611. To establish' actual innocence, the petitioner must show that "in light of all of the evidence, it is more likely than not that no reasonable juror would have convicted him." Id. (internal quotations omitted). "`To be credible,' a claim of actual innocence must be based on reliable evidence not presented at trial." Calderon v. Thompson, 523 U.S. 538, 118 S.Ct. 1489, 1503, 140 L.Ed.2d 728 (1998) (quoting Schlup v. Delo, 513 U.S. 298, 324, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995)).

1. Complete failure to raise claims in state court proceedings

Respondent argues that Johnson has procedurally defaulted many of his claims because he completely failed to raise these claims in the state' courts. The court agrees.

A federal habeas petitioner must present his federal constitutional claims to the state court in order to allow the state court the fair "`opportunity to pass upon and correct alleged violations of its prisoners' federal rights.'" McGowan, 109 F.3d at 1172. A federal claim has been fairly presented to a state court if the petitioner "`has clearly informed the state court of the factual basis of that claim and has argued to the state court that those facts constituted a violation of the petitioner's constitutional rights.'" Steward, 80 F.3d at 1211. "It is not enough that all the facts necessary to support the federal claim were before the state courts, or that a somewhat similar state-law claim was made." Momient — El, 118 F.3d at 539.

To determine whether a petitioner fairly presented a federal claim in state court, the court looks at whether the petitioner's argument to the state court "(1) rel[ied] on pertinent federal cases employing constitutional analysis; (2) rel[ied] on state cases applying constitutional analysis to a similar factual situation; (3) assert[ed] the claim in terms so particular as to call to mind a specific constitutional right; or (4) allege[d] a pattern of facts that is well within the mainstream of constitutional litigation." Bocian, 101 F.3d at 469. The presence of any one of the above factors, especially the first and' second, does not automatically avoid procedural default. Id. Rather, the court must consider the specific facts of each case. Id.

  a. Johnson's claim that his trial counsel was
    ineffective because he failed to enter the doctor's
    bill into evidence

In his "Arguments for Relief," Johnson argues that his trial counsel was ineffective because he failed to enter into evidence a bill from Northwestern Hospital for services rendered on June 9, 1985. (Pet'r Supp. Argu. 2B.) The court finds that Johnson has procedurally defaulted this claim.

Having reviewed the entire record, the court finds that Johnson did not raise this claim in the state courts. The closest that Johnson comes to raising the claim is in his post-conviction petition. In one portion of that document, Johnson claims that he was denied his Sixth Amendment right to effective assistance of counsel. (Resp't Ex. C at 2.) Johnson does not elaborate on this claim. Three pages later, Johnson states that he has attached "[d]ocuments Which show court Erred In denying the Defendant his sixth amendment." (Id. at 5.) Johnson then attached a medical bill from Northwestern Hospital for services rendered on June 9, 1985. (Id. at 5.) Viewing Johnson's post-conviction petition in whole, the court finds that this type of presentation is not sufficient to satisfy the requirement of fair presentment to the state courts. Not only did Johnson not cite any relevant federal or state cases applying constitutional analysis, Johnson did not present the facts of his claim in any way. Thus, the court finds that Johnson failed to present this claim to the state courts.

Because Johnson failed to present this claim to the state courts, this court can only consider the merits of the claim if Johnson shows good cause for the default and actual prejudice therefrom or actual innocence. Johnson has made no claim or showing of actual innocence. Thus, the issue is whether Johnson has ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.