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
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
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 shown good cause for and actual
prejudice from the failure to raise the claim.
The only attempt Johnson makes at explaining his failure to present
this claim is his answer to question 14 of his § 2254 petition.
Question 14 states: "If any of the grounds [for relief] were not
presented in any court, state or federal, state briefly what grounds were
not so presented, and give your reasons for not presenting them." Johnson
simply responded: "All grounds not previously presented because of
Johnson does not explain which of his counsel he believed to he
constitutionally ineffective in failing to present the claim. Thus,
Johnson may be asserting either that his appellate counsel or one of his
attorneys from his post-conviction proceedings was ineffective. However,
ineffective assistance of post-conviction counsel "is not itself a
cognizable federal constitutional violation and may not serve as cause
for procedural default." Steward, 80 F.3d at 1212; Cawley v. DeTella,
71 F.3d 691, 695 (7th Cir. 1995); see also 28 U.S.C. § 2254 (i).
Further, Johnson himself prepared the post-conviction petition. Thus, the
issue is whether Johnson has shown good cause by showing that his
appellate counsel was constitutionally ineffective for failing to present
this claim on Johnson's direct appeal.
A petitioner can establish cause for a procedural default by showing
that he received ineffective assistance of counsel. Pisciotti v.
Washington, 143 F.3d 296, 300 (7th Cir. 1998); Momient — El, 118
F.3d at 541. However, before the petitioner may use the ineffectiveness
claim to establish good cause for a procedural default, the petitioner
must present his ineffectiveness claim to the state courts as an
independent claim. Murray v. Carrier, 477 U.S. 478, 489, 106 S.Ct. 2639,
91 L.Ed.2d 397 (1986); Momient — El, 118 F.3d at 542.
In this case, Johnson never presented to the state courts his claim
that his appellate counsel was ineffective in any way. See infra Part
II.A.1.d (explaining that Johnson has procedurally defaulted his claim of
ineffective assistance of appellate counsel because he never presented
the claim to the Illinois courts). The Illinois courts were not given the
opportunity to address this constitutional issue at any stage of the
proceedings. For that reason alone, Johnson cannot use his claim of
ineffective assistance of appellate counsel to establish good cause for
his procedural default. See Momient — El, 118 F.3d at 542.
There are two other problems with Johnson's claim of ineffective
assistance of appellate counsel. The first is that Johnson has only
alleged in general and conclusory terms that he received ineffective
assistance of appellate counsel because his appellate counsel "failed to
argue all of the issues," "argued two issues without any records or
affidavits," and "never contacted plaintiff to ask for hindsight thus
having key pieces of evidence waived in future proceedings." (Pet'r
Supp. Argu. 7.) Further, Johnson makes no effort to explain how he was
prejudiced by his appellate counsel's alleged shortcomings, which is a
fundamental requirement of his claim of ineffective assistance of
appellate counsel. See, e.g., Strickland v. Washington, 466 U.S. 668, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984); Arango-Alvarez v. United
States, 134 F.3d 888, 890 (7th Cir. 1998). Thus, Johnson's generalized
and conclusory allegations fall well short of what is needed to make out
a claim for ineffective assistance of appellate counsel. See Hernandez
v. Cooper, 28 F. Supp.2d 498, 511 (N.D.Ill. 1998).
The second other problem is that the court finds that Johnson's
appellate counsel was not ineffective for failing to raise this issue on
appeal. Appellate counsel's performance is constitutionally deficient
where counsel fails to raise issues that are (1) obvious and (2) clearly
stronger than the one raised. Kelly v. United States, 29 F.3d 1107, 1112
(7th Cir. 1994). Having reviewed Johnson's appellate brief and the trial
transcript, the court finds that this issue was not obvious or clearly
stronger than the two issues raised on Johnson's direct appeal.
Accordingly, the court finds that Johnson has failed to establish good
cause for his failure to raise this claim in the state courts and, thus,
dismisses this claim with prejudice.
b. Johnson's claim that his trial counsel was
ineffective because he failed to bring up the fact
that Johnson comes from a "mixed family"
In his "Arguments for Relief," Johnson argues that his trial counsel
was ineffective because he failed to bring up the fact that Johnson comes
from a "mixed family." (Pet'r Supp. Argu. 3.) The court finds that
Johnson has procedurally defaulted this claim.