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U.S. EX REL. JOHNSON v. TALLY
April 27, 1999
UNITED STATES EX REL. THOMAS
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.
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
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 ...