Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

U.S. v. STERNES

June 21, 2004.

UNITED STATES OF AMERICA ex rel. CURTIS JOHNSON, Petitioner,
v.
JERRY L. STERNES,[fn1] Respondent.



The opinion of the court was delivered by: WILLIAM J. HIBBLER, District Judge

*fn1 Johnson's petition named Odie Washington, the former warden of the Dixon Correctional Center, as the respondent. The current warden of the Dixon Correctional Center, where Johnson remains incarcerated, is Jerry L. Sternes. Accordingly, Jerry L. Sternes is hereby substituted as the respondent. See Fed.R.Civ.P. 25 (d)(1); Rule 2(a) of the Rules Governing Habeas Corpus 28 U.S.C. § 2254 Cases.

MEMORANDUM AND ORDER

Curtis Johnson was convicted by an Illinois jury of one count of murder and three counts of armed robbery. After Johnson's challenges to his conviction and sentence were denied on direct appeal and post-conviction proceedings, he filed a habeas corpus petition pursuant to 28 U.S.C. § 2254, asserting seven grounds for relief. For the following reasons, the Court will set an evidentiary hearing for one of Johnson's habeas claims and DENY the remainder of Johnson's petition.

  I. Background

  A. Facts

  On September 14, 1984, Johnson was arrested for the armed robbery of Dan Williams, Wilber Shipp, and Robert Hampton, and the murder of Dan Williams. Shipp and Hampton testified that shortly after 9:30 a.m. on September 3, 1984, they were helping Shipp's stepson, Danny Turner, and their friend, Dan Williams, pull Hampton's van out of his garage located at 7009 South Lowe in Chicago in order to make more room for Williams' vehicle. Shipp and Hampton testified that while they worked to pull out the van, Johnson entered the garage holding a. 38 Smith & Wesson blue steel revolver and announced a robbery. Johnson ordered the men to lie on the floor and empty their pockets. Hampton and Shipp testified that they complied and placed their money on the floor in the garage in front of them. Williams, however, threw his change on the floor. Angered by this, Johnson demanded Williams remove his wallet. Williams took his wallet out of his pants and threw it toward Johnson. Johnson said: "Son of a bitch, you thinking I'm playing with you, don't you. I'm not playing with you. You get up and walk out that back door." Shipp and Hampton testified that Johnson walked with Williams to the rear door of the garage and shot him once in the back of the head, killing him instantly.

  Hampton estimated that the robbery took only a few minutes, while Shipp thought they were on the floor fifteen to twenty minutes. Both testified that they saw Johnson while they were standing in the garage and that they continued to look at him and his gun after he ordered them to lie on the floor. The garage was illuminated by natural and artificial light. Hampton and Shipp gave a detailed description of the offender and his clothing to the police. Approximately ten days after the incident, Hampton and Shipp selected Johnson's photograph from an array of photographs and identified Johnson in several separate lineups. Turner, who was not able to make a positive identification of Johnson in two separate lineups, did not testify at trial.

  Upon his arrest, Johnson denied that he was the offender. He told police that he left his apartment at 6632 South Lowe between 9 and 10 a.m. on September 3, 1984, and walked to a home on 65th Street to cut hair. His customer was not home, so Johnson went to an address on South Halsted. He then cut hair later in the afternoon until 2 or 3 p.m. After he was identified in the lineups, Johnson gave another statement to police and an Assistant State's Attorney in which he said that he was at home with his mother and her friend, Willie Williams, until 11 a.m.

  On September 14, 1984, police searched the apartment of Johnson's common law wife, Ella, at 2309 East 79th Street, between 10 and 11 p.m. Police then searched Johnson's apartment after Johnson spoke with his sister, Shirley Rogers, from the police station. No evidence connecting Johnson with the crimes was found at either address. Johnson presented an alibi defense that was corroborated by his mother and Willie Williams. Another witness, Willie Woodridge, testified regarding Johnson's whereabouts several hours after the shooting.

  B. Procedural History

  At Johnson's trial, he was convicted of one count of murder and three counts of armed robbery. The jury sentenced him to serve concurrent terms of sixty years for the murder and thirty years for armed robbery. On February 5, 1986, Johnson filed his direct appeal.

  In his direct appeal, Johnson raised four issues: (1) the matter should be remanded for a Batson hearing because he was denied his Sixth Amendment right to a jury trial drawn from a representative cross-section of the community by the prosecutor's use of peremptory challenges; (2) he was not proved guilty beyond a reasonable doubt; (3) the prosecutor made improper and inflammatory comments in final arguments; and (4) his sentence was excessive. On August 21, 1987, the Illinois Appellate Court affirmed Johnson's convictions and sentence, but remanded the case to the circuit court with instructions to conduct an evidentiary hearing in accordance with Batson v. Kentucky, 476 U.S. 79 (1986). The court found that the State used its peremptory challenges to excuse eight black people from the jury and only accepted two black jurors, and, thus, the court ordered that Johnson be allowed to return to the trial court and attempt to establish a prima facie case of discrimination in every instance in which the Batson issue was viable.*fn2 Johnson filed a petition for rehearing on the other issues, but his petition was denied on September 17, 1987. His petition for leave to appeal to the Supreme Court was also denied.

  On remand, Johnson's Batson claims were denied. The circuit court found that Johnson failed to establish a prima facie case of purposeful discrimination in the prosecutor's use of peremptory challenges, and Johnson thus failed to substantiate his claim of unconstitutional discrimination in the exercise of peremptory challenges. The Illinois Appellate Court affirmed the circuit court's decision in a March 26, 1993 order. On May 11, 1993, the Illinois Supreme Court denied Johnson's petition for leave to appeal.

  Johnson filed a pro se petition for post-conviction relief on December 10, 1991, and on June 1, 1994, he filed a supplemental post-conviction petition through counsel, asserting the following issues: (1) denial of his Sixth Amendment right to effective assistance of trial counsel because counsel failed to interview and call Danny Turner as a witness; (2) denial of his right to an appeal on his Batson remand when the appellate court misapplied existing law; (3) improper prosecutorial conduct leading to denial of due process of law and a fair trial; (4) ineffective assistance of appellate counsel on Johnson's direct appeal for failing to raise the issue of the prosecutor's cumulative misconduct; and (5) ineffective assistance of appellate counsel on Batson remand The public defender's office also supplemented Johnson's petition with an affidavit from Turner and from Johnson's trial counsel. On June 27, 1994, the circuit court dismissed Johnson's post-conviction petition, and on January 3, 1997, the appellate court affirmed the dismissal. The appellate court reasoned that Johnson's ineffective assistance of trial counsel claim was barred by the doctrine of res judicata, and that ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.