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JOHNSON v. STERNES

March 10, 2004.

WILLIE JOHNSON, Petitioner
v.
JERRY L. STERNES and LISA MADIGAN, Respondents



The opinion of the court was delivered by: CHARLES KOCORAS, District Judge

MEMORANDUM OPINION

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.

BACKGROUND

  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 Page 2 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, 1999.

  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. Page 3 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 Page 4 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. Page 5

  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, Page 6 202 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 petition Page 7 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 ...


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