The opinion of the court was delivered by: CHARLES KOCORAS, District Judge
This matter comes before the court on the petition of Relator Willie
Johnson (Johnson) for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
For the reasons set forth below, the petition is denied.
Johnson is currently a prisoner at the Dixon Correctional Center in
Dixon, Illinois. As such, he is in the custody of Respondent Jerry
Sternes, the facility's warden. During his incarceration, Johnson has
witnessed his case take a somewhat complex procedural journey, which is
described as follows.
After a jury in the Circuit Court of Cook County found Johnson guilty
of first degree murder and armed robbery, he was respectively sentenced
to forty-eight and six
year prison terms (consecutively imposed) on August 29, 1997. Johnson
then appealed his sentences to the Illinois Appellate Court, First
District. Johnson's appeal raised the following arguments: (1) his Sixth
Amendment right to confrontation was violated when he was prevented from
cross-examining a prosecution witness as to potential bias; (2) he was
denied his due process rights to a fair trial when the court permitted
the jury to view Johnson's mug shot during their deliberations; (3) the
trial court erred in denying his motion to suppress certain statements
made by Johnson; (4) the prosecution failed to prove beyond a reasonable
doubt that Johnson was guilty of armed robbery; (5) Johnson's first degree
murder conviction should be modified to felony murder; (6) his sentence is
excessive; (7) the trial court erred in imposing consecutive sentences; and
(8) Johnson is entitled to pre-trial custody credits on his sentences. On
March 11, 1999, the Illinois Appellate Court affirmed Johnson's
conviction and sentence. Johnson then filed a Petition for Rehearing with
the Illinois Appellate Court, which denied the petition on March 25,
Johnson next filed a Petition for Leave to Appeal in the Illinois
Supreme Court. On December l, 1999, the Illinois Supreme Court denied the
petition and entered a supervisory order vacating the judgement of the
Appellate Court and directing it to reconsider its judgement in light of
the case People v. Whitney, 188 Ill.2d 91 (Ill.
1999).*fn1 Finding that the facts of Whitney were distinguishable from
Johnson's case, the Appellate Court again affirmed Johnson's convictions
and sentence on February l, 2001. Johnson next filed a Petition for
Rehearing with the Illinois Appellate Court, which denied the petition on
May 2, 2001. On May 10, 2001, the Illinois Appellate Court issued a
Supplemental Order vacating Johnson's sentence in light of Apprendi v.
New Jersey, 530 U.S. 466 (2000), and subsequent Illinois case law. The
Illinois Appellate Court accordingly reduced Johnson's sentence by six
years, finding that the sentences for his two convictions should run
concurrently instead of the consecutive sentences that had been ordered
by the trial court.
On June 7, 2001, the prosecution filed a Petition for Leave to Appeal
in the Illinois Supreme Court, challenging Johnson's reduction in
sentence. The Illinois Supreme Court denied the prosecution's petition,
but on October 25, 2001, again issued a supervisory order compelling the
Illinois Appellate Court to reconsider Johnson's sentence reduction in
light of People v. Wagener. 196 Ill.2d 269 (Ill. 2001), and People v.
Carney, 196 Ill.2d 518 (Ill. 2001). On December 26, 2001, the Illinois
Appellate Court applied Wagener*fn2 and reasoned that because Johnson's
murder and armed robbery sentences were well within their statutory
ranges, his consecutive sentences were constitutional. It accordingly
reinstated Johnson's fifty-four year sentence. Johnson then filed a
Petition for Leave to Appeal in the Illinois Supreme Court, which was
denied on April 3, 2002.
As issues concerning his original sentence were meandering through
appellate review, Johnson also sought collateral relief from the trial
court. On May 23, 2000, Johnson filed a Petition for Post-Conviction
Relief in the Circuit Court of Cook County. Johnson's petition raised the
following ineffective assistance of counsel objections to his initial
trial: (1) his trial counsel failed to advise Johnson of his right to
call witnesses in his own defense; (2) his trial counsel failed to
interview or investigate potential witnesses who should have been called
to testify; (3) his trial counsel failed to call witnesses that Johnson
wanted to testify on his behalf; and (4) his trial counsel refused to
allow Johnson to testify himself and did not inform him of his
constitutional right to take the witness stand in his own defense. The
post-conviction petition was summarily dismissed as frivolous and patently
without merit by the Circuit Court on June 9, 2000.
On July 17, 2001, Johnson appealed the Circuit Court's denial of
post-conviction relief to the Illinois Appellate Court, First District.
The first issue raised was that Johnson's post-conviction petition,
alleging that his attorney did not allow him to testify and failed to
produce material witnesses, stated the gist of a meritorious claim. The
other issue presented for appeal was that the enactment of Illinois
Public Act 83-942, which amended the Illinois Post-Conviction Hearing Act
("IPCHA"), 725 ILCS 5/122-2.1,*fn3 violated the Illinois Constitution.
On March 29, 2002, the Illinois Appellate Court held that Johnson's
post-conviction petition's contentions that his trial counsel did not
inform him of his right to testify and did not allow him to testify did
present the "gist" of a meritorious claim. As such, the Appellate Court
held that the trial court had improperly summarily dismissed Johnson' s
petition as without merit and remanded the petition back to the Circuit
Court of Cook County.
The prosecution then filed a Petition for Rehearing with the Appellate
Court, which was subsequently denied on May 3 1, 2002. The prosecution
next filed a Petition for Leave to Appeal in the Illinois Supreme Court.
On October 24, 2002, the Illinois Supreme Court denied the petition and
entered a supervisory order directing the Appellate Court to vacate its
judgment and reconsider in light of People v. Collins,
202 Ill.2d 59 (Ill. 2002).*fn4 On February 19, 2003, the Appellate Court
applied Collins and determined that because Johnson had not supported his
post-conviction petition with the requisite affidavits, the trial court's
summary dismissal of Johnson's petition was mandatory. The Appellate
Court also held that Illinois Public Act 83-942 did not run afoul of the
Illinois Constitution, dismissing Johnson's second ground for appealing
the denial of post-conviction relief.
Johnson next filed a Petition for Leave to Appeal the Appellate Court's
decision on post-conviction review in the Illinois Supreme Court, which
denied the petition on June 4, 2003. Johnson then filed a Motion for
Leave to File a Motion for Reconsideration in the Illinois Supreme Court,
which was denied on October 6, 2003.
On July 2003, Johnson, who is proceeding pro se, filed the present
petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. However,
on August 11, 2003, we dismissed the petition without prejudice because
Johnson's pending state post-conviction review rendered his state claims
unexhausted. We did grant Johnson leave to file for reinstatement and to
file an amended petition upon the completion of the Illinois appellate
review process. On October 29, 2003, we granted Johnson's motion for
reinstatement and motion to file an amended petition. Johnson's present
contains the following claims, all alleging ineffective assistance
of trial counsel: (1) Johnson's lawyer used subterfuge to pressure him
into a jury trial rather than a bench trial; (2) his lawyer failed to
interview and subpoena Glenda Anderson, Derhon Williams, and other
witnesses; and (3) Johnson's lawyer should have known that Dr. Gelbort,
the psychologist who testified at Johnson's suppression hearing, had an
expired license that should have disqualified his evaluation and
rendering opinion of Johnson.
Respondent Sternes counters that Johnson's claims ARB barred by
procedural default, and that Johnson's ...