United States District Court, N.D. Illinois
April 19, 2004.
WILLIE JOHNSON, Plaintiff
JERRY L. STERNES and LISA MADIGAN, Defendants
The opinion of the court was delivered by: CHARLES KOCORAS, District Judge
This matter comes before the court on Willie Johnson's ("Johnson")
application for a certificate of appealability pursuant to
28 U.S.C. § 2253(c). For the reasons set forth below, the application is
The factual background for this case can be found in our prior opinion
of U.S. ex rel. Johnson v. Sternes, 2004 WL 527117 (N.D. Ill. 2004). In
that decision, we denied Johnson's petition, brought under
28 U.S.C. § 2254, for writ of habeas corpus. Johnson now wishes to appeal
certain issues from that decision, but appellate proceedings cannot
commence without a certificate of appealability either from this court or from a circuit judge of the Court of Appeals. 28 U.S.C. § 2253(c);
A court may issue a certificate of appealability for a decision denying
a 28 U.S.C. § 2254 petition for writ of habeas corpus "only if the
applicant has made a substantial showing of the denial of a constitutional
right." 28 U.S.C. § 2253(c)(2). In order to make this showing, the
applicant must demonstrate "that reasonable jurists could debate whether
the challenges in his habeas petition should have been resolved
differently or that his petition adequately shows a sufficient chance of
the denial of a constitutional right that he deserves encouragement to
proceed further," Rutledge v. U.S., 230 F.3d 1041, 1047 (7th Cir. 2000).
Johnson seeks his certificate of appealability on the following six
grounds: (1) The appellate court erred in upholding the imposition of
mandatory consecutive sentences; (2) the trial court erred in the
imposition of consecutive sentences; (3) the Illinois courts erred in
upholding Johnson's first degree murder and armed robbery convictions; (4)
the trial court erred in admitting Johnson's mug-shot into evidence; (5)
the Illinois courts improperly dismissed Johnson's post conviction
petition; and (6) ineffective assistance of counsel. However, because
Johnson's habeas petition under 28 U.S.C. § 2254 contained only
ineffective assistance of counsel claims, the first five grounds he presently cites for relief have been waived for
appeal, as they were not earlier raised before this court. See Schoenfeld
v. Apfel, 237 F.3d 788, 793 (7th Cir. 2001); Ehrhart v. Secretary of
Health and Human Serv., 969 F.2d 534, 537, n.4 (7th Cir. 1992); U.S. v.
Andreas, 150 F.3d 766, 769 (7th Cir. 1998).
The remaining ineffective assistance of counsel claim raises the
identical three issues that Johnson presented in his 2254 petition: (1)
His trial counsel used subterfuge in pressuring him into taking a jury
trial; (2) his trial counsel failed to subpoena and interview key
witnesses; and (3) his trial counsel should have known that Johnson's
testifying clinical psychologist's license was expired. Our March 10,
2004, Memorandum Opinion squarely dismissed these three claims as barred
under the doctrine of procedural default. As Johnson makes no argument
why another court would reach a different conclusion, we find that these
reinstated claims are insufficient to merit certification to the
appellate court under the Rutledge standard.
For the reasons set forth above, Johnson's application for a
certificate of appealability is denied.
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