United States District Court, N.D. Illinois
March 10, 2004.
WILLIE JOHNSON, Petitioner
JERRY L. STERNES and LISA MADIGAN, Respondents
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 petition must accordingly be
Under the Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA"), a prisoner in state custody may petition a district court for
a writ of habeas corpus "only on the ground that he is in custody in
violation of the Constitution or laws or treaties of the United States."
28 U.S.C. § 2254(a). The AEDPA further dictates that a prisoner in
state custody cannot be granted habeas relief "unless the state court
decision `was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court of
the United States,' or `was based on an unreasonable determination of the
facts in light of the evidence presented in the State court proceeding."'
Schaff v. Snyder, 190 F.3d 513, 521 (7th Cir. 1999) (quoting
28 U.S.C. § 2254(d)(1) & (2)). For a state court decision to be
"contrary to" clearly established Federal law, it must be "substantially
different" from relevant Supreme Court precedent. Williams v. Taylor,
529 U.S. 362, 405 (2000). This situation arises if the state court either
applies a rule that contradicts the governing law as set forth by the
Supreme Court or confronts a set of facts that ARB materially
indistinguishable from a decision of the Supreme Court and still arrives
at a different result. Id. at 405-06. A state court decision involves an
"unreasonable application" of clearly established Supreme Court law when
it uses the correct legal rule but applies it in an objectively
unreasonable manner. Id. at 409-10. An objectively unreasonable decision
is one that lies "well outside the boundaries of permissible differences
of opinion," Hardaway v. Young, 302 F.3d 757, 762 (7th Cir. 2002), With
these considerations in mind we now turn to Johnson's petition for writ
of habeas corpus.
Before examining the merits of Johnson's petition for writ of habeas
corpus, we must first determine whether Johnson has cleared the hurdle of
procedural default. Rodriguez v. Peters, 63 F.3d 546, 555 (7th Cir.
1995). The doctrine of procedural default mandates the dismissal of
habeas claims in two situations. The first is when the defendant has
failed to present a federal constitutional issue to the state court
system before raising it in the federal habeas proceedings without
showing cause and prejudice
for his failure to do so. Id. This requirement is intended to provide
state courts a `"fair opportunity' to consider a question of
constitutional import before" the issue is reviewed collaterally by a
federal court. Kurzawa v. Jordan, 146 F.3d 435, 441 (7th Cir. 1998)
(quotation omitted). The second ground for procedural default occurs when
the defendant has presented the constitutional issue to the state court,
but the state court declined to address the federal claim because the
defendant failed to satisfy an independent state procedural requirement
that was adequate to support the state court's judgment. Moore v.
Bryant, 295 F.3d 771, 774 (7th Cir. 2002).
Respondent Sternes argues that two of Johnson's ineffective assistance
of counsel claims that his attorney pressured him into a jury trial and
that his attorney failed to discover the testifying psychologist's
expired license ARB procedurally defaulted because they were never
raised in the state courts. To set forth a claim of ineffective
assistance of counsel, a defendant must identify the specific acts or
omissions of his attorney that form the basis of his claim. Momient-El
v. DeTella, 118 F.3d 535, 541 (7th Cir. 1997). To survive procedural
default, the "specific ground for ineffectiveness raised in the federal
petition must have been raised in the state case." Everett v. Bamett,
162 F.3d 498, 502 (7th Cir. 1998). If not, the petitioner must show cause
for the failure to raise the issue and prejudice arising from the failure
or that the failure to consider the claim will result in a fundamental
miscarriage of justice. Id. at
502-03. Even though Johnson did raise the ineffective assistance of
counsel claim as early as his petition for post-conviction relief, his
claims did not involve issues concerning his attorney's failure to
request a bench trial or to investigate his psychologist's credentials.
Because Johnson did not raise these issues at any time in state court and
because he cannot now show cause for his failure to do so or demonstrate
that our refusal to hear his claim will result in a miscarriage of
justice, these two grounds of relief ARB barred by reason of procedural
Sternes also contends that Johnson's remaining ineffective assistance
of counsel claim, that his trial attorney failed to interview and
subpoena certain key witnesses, is procedurally defaulted under the
independent and adequate state ground doctrine. As mentioned above, the
doctrine dictates that a "federal court will not review a question of
federal law decided by a state court if the decision of the state court
rests on a state procedural ground that is independent of the federal
question and adequate to support the judgement." Moore, 295 F.3d at 774.
This doctrine will only bar habeas review if the state court actually
relied on its procedural rule as an independent basis for its decision.
Id. Johnson first advanced claims concerning his lawyer's failure to
interview and subpoena certain witnesses in his petition for
post-conviction relief, filed in the Circuit Court of Cook County. These
claims were summarily dismissed by the
Circuit Court. However, we must look to the decision of the last
state court to which Johnson's claims were presented. Id.
That decision would be the Illinois Appellate Court's ruling*fn5 that
by not attaching the requisite affidavits Johnson's post-conviction was
procedurally barred under Collins and the IPCHA, 725 ILCS 5/122-2, and as
such, it was precluded from hearing the merits of Johnson's petition,
including his ineffective assistance of counsel claims. We find that the
Illinois Appellate Court's decision not to hear the merits of Johnson's
claims, relying on Collins and the IPCHA, was a proper ruling based on an
independent Illinois procedural requirement. Johnson cannot demonstrate
good cause for his failure to comply with the IPCHA nor prejudice arising
from his failure to do so. See Wainwright v. Sykes, 433 U.S. 72, 87
(1977). Johnson also does not argue, nor do we find, that our decision
not to hear his claims would result in a "fundamental miscarriage of
justice." Schlup v. Delo, 513 U.S. 298, 299 (1995).*fn6 As such,
Johnson's remaining ineffective assistance of counsel claim must also be
dismissed as barred by procedural default.
Based on the foregoing analysis, Johnson's petition for writ of habeas
corpus is denied.