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U.S. EX REL. JOHNSON v. BATTAGLIA

United States District Court, N.D. Illinois, Eastern Division


November 1, 2005.

UNITED STATES ex rel. DOMINIQUE JOHNSON, Petitioner,
v.
DEIDRE BATTAGLIA,[fn1] Warden Stateville Correctional Center, Respondent.

The opinion of the court was delivered by: AMY ST. EVE, District Judge

*fn1 Deirdre Battaglia is currently the Warden at Stateville Correctional Center and is thus the proper Respondent in this habeas action. See Rule 2(a) of the Rules Governing Habeas Corpus Cases under 28 U.S.C. § 2254. The Court, therefore, substitutes Battaglia as Respondent. See Fed.R.Civ.P. 25(d)(1).

MEMORANDUM OPINION AND ORDER

Before the Court is pro se Petitioner Dominique Johnson's ("Johnson") petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254(d)(1). For the reasons discussed below, the Court denies Johnson's petition.

  BACKGROUND

  Johnson does not present clear and convincing evidence challenging the statement of facts set forth in the Illinois Appellate Court's opinions affirming the judgments of the Circuit Court of Cook County, and thus the Court presumes those facts are correct for purposes of its review. See 28 U.S.C. § 2254(e)(1); Ruvalcaba v. Chandler, 416 F.3d 555, 560 (7th Cir. 2005). The Court, therefore, adopts the underlying facts as set forth by the Illinois Appellate Court, First Judicial District, in Johnson's direct and post-conviction appeals. See People v. Johnson, No. 1-99-2127 (Ill.App.Ct. Sept. 28, 2001) (unpublished order); People v. Johnson, No. 1-02-1236 (Ill.App.Ct. Dec. 31, 2003) (unpublished order).

  I. Factual Background

  In the late afternoon of September 10, 1995, Tisco Esquival ("Tisco") and Mario Perez ("Perez") were shot multiple times near the corner of Division Street and Harding Avenue in Chicago, Illinois. Tisco died and Perez was injured. Several eyewitnesses testified at trial that Johnson's co-defendant, Michael Austin ("Austin") had been arguing with Tisco earlier in the day and had also slapped Tisco. Later that day, Perez joined Tisco and Tisco's father, Filemon Esquival, to go to the liquor store. Thereafter, two men approached Filemon, including Austin, and one of them beat him up. A short time later, Austin and others approached Tisco and Perez and started shooting at them.

  Also at trial, another eyewitness, Kentrell Fleming, who had known Johnson since grade school, identified Johnson as the person who shot Tisco and Perez. Perez also testified at trial explaining the events of September 10, 1995 and that after recovering from his gunshot wounds, he positively identified Austin and Johnson in separate lineups.

  II. Procedural Background

  On November 20, 1998, following a trial in the Circuit Court of Cook County, a jury found Johnson guilty of one count of first degree murder and one count of attempted murder. On January 22, 1999, the Circuit Court sentenced Johnson to 60 years imprisonment for the first degree murder conviction and a consecutive 30 year term of imprisonment for the attempted murder.

  Johnson appealed his conviction and sentence to the Illinois Appellate Court, First Division, raising the following claims: (1) the State failed to prove him guilty beyond a reasonable doubt; (2) the trial court erroneously admitted "other crimes" evidence; (3) the State presented irrelevant and inflammatory evidence about the victim's family; (4) the State put their own testimony before the jury, misstated the evidence in opening and closing arguments, and referred to the jury as the State's weapon; (5) the cumulative impact of improper evidence and prosecutorial misconduct denied him right to a fair trial; and (6) his consecutive sentences violated Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). (R. 15-1, Respondent's Rule 5 Exs., Vol. I, Ex. B, C.)

  On September 28, 2001, the Illinois Appellate Court affirmed Johnson's conviction and sentence. (Ex. D.) Johnson then filed a petition for leave to appeal to the Illinois Supreme Court. In his petition, he raised the following claims: (1) the appellate court erred by concluding that the introduction of other crimes evidence was harmless error; and (2) his consecutive sentences violated Apprendi. (Ex. E.) On February 6, 2002, the Illinois Supreme Court denied Johnson's petition for leave to appeal. (Ex. F.)

  On February 19, 2002, Johnson filed a petition pursuant to the Illinois Post-Conviction Hearing Act raising the following claims: (1) his consecutive sentences violated Apprendi; (2) the trial court erred by not barring the testimony of the decedent's father; (3) the trial court erred by allowing evidence of Johnson's drug sales; (4) the trial court erred by denying Johnson's motion for a mistrial; (5) the trial court erred by denying his motion for a directed verdict; (6) the State committed prosecutorial misconduct by suborning perjury, failing to correct false statements made by a State's witness, misstating the applicable law, and misrepresenting the evidence during its opening statement; (7) ineffective assistance of trial counsel for failing to call Steven Ellis as a witness, to object to the State calling Kentrell Fleming in rebuttal, to object to the State's misstatement of the applicable law, and to more extensively cross-examine a State's witness; (8) the trial court erred by giving the jury instructions on accountability and circumstantial evidence; (9) the trial court erred by failing to give federal jury instructions; (10) the trial court erred by admitting prejudicial photos of the decedent's corpse; (11) ineffective assistance of trial counsel for failing to properly investigate the case or prepare for trial; and (12) ineffective assistance of appellate counsel for failing to assert the claims contained in Johnson's post-trial motions on appeal. (Ex. G.). On March 8, 2002, the Circuit Court of Cook County dismissed Johnson's post-conviction petition. (Ex. A.)

  Johnson appealed the dismissal of his post-conviction petition to the Illinois Appellate Court, First Judicial District, claiming that his trial counsel was ineffective for failing to object to erroneous jury instructions and to call Steven Ellis as a witness. (Ex. H.) Johnson also argued that his appellate counsel was ineffective for failing to challenge the erroneous jury instructions on appeal. (Ex. H.) The Illinois Appellate Court affirmed the Circuit Court's dismissal of Johnson's post-conviction petition. (Ex. I.)

  Thereafter, Johnson filed a petition for leave to appeal with the Illinois Supreme Court alleging ineffective assistance of trial counsel for failing to object to improper jury instructions and to call Steven Ellis as a witness. (Ex. J.) On May 26, 2004, the Illinois Supreme Court denied Johnson's petition for leave to appeal. (Ex. K.)

  On or around February 25, 2005, Johnson filed a "petition for relief from judgment" in the Circuit Court of Cook County. (R. 16-1, Respondent's Rule 5 Exs., Vol. II, Ex. L.) In his motion, Johnson alleged that he was actually innocent of the murder and attempted murder and presented new evidence of his innocence. (Ex. L.) The Circuit Court classified Johnson's self-styled motion as a successive post-conviction petition and then denied Johnson leave to file a second post-conviction petition. (Ex. M.) Johnson filed a notice of appeal from the Circuit Court's denial on June 16, 2005. (Ex. A.) Johnson's appeal is still pending.*fn2 (Ex. N.)

  Before the Court is Johnson's petition for habeas corpus relief pursuant to 28 U.S.C. § 2254(d)(1). Construing his pro se habeas petition liberally, see Myles v. United States, 416 F.3d 551, 552 (7th Cir. 2005), Johnson presents the following habeas claims: (1) the State failed to prove him guilty beyond a reasonable doubt; (2) the trial court erroneously admitted "other crimes" evidence to show motive; (3) the trial court erred by admitting evidence about the victim's family; (4) the State mis-characterized evidence in closing arguments and asked a State's witness a leading question on direct examination; (5) he was denied a fair trial by the "cumulative impact" of the trial court's evidentiary errors and the State's misconduct; (6) his consecutive sentences violated Apprendi; (7) ineffective assistance of trial counsel; (8) ineffective assistance of appellate and post-conviction counsel; (9) the trial court erred by not barring the testimony of decedent's father; (10) the trial court erred by denying his motions for a mistrial and directed verdict; (11) the State suborned perjury from Kentrell Fleming; and (12) the State committed prosecutorial misconduct in its opening and closing statements. LEGAL STANDARDS

  I. Habeas Standard

  Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), habeas relief cannot be granted unless the state court's decision was (1) contrary to, or an unreasonable application of law clearly established by the Supreme Court or (2) was "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." Barrow v. Uchtman, 398 F.3d 597, 602 (7th Cir. 2005) (citing 28 U.S.C. § 2254(d)(1-2)); see also Williams v. Taylor, 529 U.S. 362, 402-03, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). In Williams, the Supreme Court explained that a state court's decision is "contrary to" clearly established Supreme Court law "if the state court arrives at a conclusion opposite to that reached by this Court on a question of law" or "if the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to ours." Id. at 405.

  Under the "unreasonable application" prong of the AEDPA standard, a habeas petitioner must demonstrate that although the state court identified the correct legal rule, it unreasonably applied the controlling law to the facts of the case. Id. at 407. "This reasonableness determination is quite deferential, such that a state decision may stand as long as it is objectively reasonable, even if the reviewing court determines it to be substantively incorrect." Barrow, 398 F.3d at 602; see also Yarborough v. Alvarado, 541 U.S. 652, 665, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004) (state court decision must be objectively unreasonable).

  To be considered "unreasonable," a state court's decision must lie "well outside the boundaries of permissible differences of opinion." Hardaway v. Young, 302 F.3d 757, 762 (7th Cir. 2002); see also Hubanks v. Frank, 392 F.3d 926, 929 (7th Cir. 2004) (to be reasonable, state court decision must be minimally consistent with facts and circumstances of case or one of several equally plausible outcomes).

  II. Procedural Default

  Before bringing a habeas claim in federal court, the petitioner must exhaust all remedies available to him in state court. Bintz v. Bertrand, 403 F.3d 859, 863 (7th Cir. 2005). In other words, the "petitioner must establish that he fully and fairly presented his claims to the state appellate courts, thus giving the state courts a meaningful opportunity to consider the substance of the claims that he later presents in his federal challenge." Id.; see also O'Sullivan v. Boerckel, 526 U.S. 838, 845, 848, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999). Fair presentment requires a petitioner to set forth the operative facts and controlling legal principles for each of his claims. Bintz, 403 F.3d at 863. "A habeas petitioner who has exhausted his state court remedies without properly asserting his federal claim at each level of state court review has procedurally defaulted that claim." Lewis v. Sternes, 390 F.3d 1019, 1026 (7th Cir. 2004). Procedural default also occurs if the state court did not address the petitioner's federal claim because the petitioner failed to meet independent and adequate state procedural requirements. See Stewart v. Smith, 536 U.S. 856, 860, 122 S.Ct. 2578, 153 L.Ed.2d 762 (2002) (per curiam) (federal courts cannot collaterally review questions of federal law if state court decision rests on a state procedural ground that is independent of the federal question and adequate to support the judgment); see also Coleman v. Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546, 2565, 115 L.Ed.2d 640 (1991) (same).

  A petitioner may overcome procedural default by demonstrating cause for the default and actual prejudice as a result of the alleged violation of federal law, or by showing that a court's failure to consider the claims will result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 750. A fundamental miscarriage of justice occurs when a petitioner establishes that "a constitutional violation has probably resulted in the conviction of one who is actually innocent." Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986); see also Hayes v. Battaglia, 403 F.3d 935, 938 (7th Cir. 2005) (factual innocence relieves habeas petitioner of procedural default).

  ANALYSIS

  I. Johnson's Procedurally Defaulted Claims

  In his Reply Brief, Johnson concedes that "all of the issues were not heard by the state courts" and that many of his claims got "lost in the shuffle." Indeed, Johnson did not properly present the following claims to the Illinois courts under Boerckel and its progeny: the State failed to prove him guilty beyond a reasonable doubt; the trial court erred by admitting evidence about the victim's family; the State mis-characterized evidence in closing arguments and asked a State's witness a leading question on direct examination; Johnson was denied a fair trial by the "cumulative impact" of the trial court's evidentiary errors and the State's misconduct; ineffective assistance of trial counsel;*fn3 ineffective assistance of appellate and post-conviction counsel; the trial court erred by not barring the testimony of the decedent's father; the trial court erred by denying Johnson's motions for a mistrial and directed verdict; the State suborned perjury from Kentrell Fleming; and the State committed prosecutorial misconduct in its opening and closing statements.

  A. Cause and Prejudice

  Nonetheless, Johnson argues that he can establish cause and prejudice to overcome his procedurally defaulted claims because the appellate defender's office refused to raise certain issues on his direct and post-conviction appeals. See Coleman, 501 U.S. at 750. Johnson, however, fails to articulate exactly what the appellate defender's office did or did not do, except that the appellate defender told him certain claims should be raised in his post-conviction proceedings and not on direct appeal. Further, Johnson does not discuss how he was prejudiced by counsel's actions. Finally, because criminal defendants do not have a Sixth Amendment right to post-conviction counsel, any argument based on post-conviction counsel's errors must fail. Id. at 72 (citing Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987)). In sum, Johnson has not established cause and prejudice to overcome his failure to properly assert his claims to the Illinois state courts.

  B. Fundamental Miscarriage of Justice

  Johnson also argues that it would be a fundamental miscarriage of justice if the Court does not consider his procedurally defaulted claims because he is actually innocent. See Coleman, 501 U.S. at 750. To establish actual innocence on collateral review, a petitioner must present "new reliable evidence that was not presented at trial" and "show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence." Schlup v. Delo, 513 U.S. 298, 299, 327-28, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). In support of his argument, Johnson has provided the affidavit of his co-defendant, Michael Austin, as new evidence of his actual innocence. In his affidavit, Austin avers that he, not Johnson, shot Tisco Esquival and Mario Perez. Austin further avers that Johnson had nothing to do with the crime, was not at the scene of the crime, and was not involved in the fight prior to the shooting. In sum, Austin asserts that Johnson did not have any knowledge of these events.

  Reviewing Johnson's new evidence in light of the evidence presented at trial, see id. at 328, Johnson has not met the threshold requirement that "in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt." See id. at 329 (standard requires district court to make probabilistic decision about what reasonable, properly-instructed jurors would do). At trial, several eyewitnesses not only placed Johnson at the scene of the crime, but identified Johnson as the perpetrator of the crimes. Therefore, the trial testimony unequivocally refutes Austin's contentions that Johnson had nothing to do with the first degree murder and attempted murder.

  Because Johnson has not established the fundamental miscarriage of justice exception, the Court cannot consider the merits of Johnson's procedurally barred claims.

  II. Remaining Habeas Claims

  A. Other Crimes Evidence

  First, Johnson contends that trial court erroneously admitted "other crimes" evidence at trial. In conducting habeas review, the Court is limited to deciding whether a petitioner's conviction violates the Constitution, laws, or treaties of the United States. See 28 U.S.C. § 2254(a). Thus, a state court's determination based on state law is not a cognizable claim on collateral review. See Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991); see also McCloud v. Deppisch, 409 F.3d 869, 874 (7th Cir. 2005) ("State law errors normally are not cognizable in habeas proceedings"). Habeas relief is only warranted if the state court's evidentiary rulings were so prejudicial that they compromised Johnson's due process right to a fundamentally fair trial, that is, "only if the state court committed an error so serious as to render it likely that an innocent person was convicted. . . ." Perruquet v. Briley, 390 F.3d 505, 510 (7th Cir. 2004); see also Estelle, 502 U.S. at 72.

  According to the record, the trial court admitted into evidence that Johnson was dealing drugs near Tisco's home the day of the murder and that Johnson assaulted Tisco's father that same day. The Illinois Appellate Court concluded that evidence of the assault was not in error because it indicated animus towards Tisco's family, and thus went to Johnson's motive. (Respondent's Rule 5 Exs., Vol. I, Ex. D.) The appellate court, however, concluded that the drug evidence was in error, but that the error was harmless due to the abundant evidence of Johnson's guilt. (Id.)

  Based on these admissions into evidence, the state court's rulings were not "so grave" that they deprived Johnson his due process right to a fair trial. See id. at 512. In fact, the only trial error regarding "other crimes" evidence was harmless due to credible, eyewitness testimony concerning Johnson's involvement in the shooting. Therefore, Johnson has failed to establish that the trial court's error was so egregious that it is likely that the jury convicted an innocent person. See id. at 510.

  B. Consecutive Sentences

  Next, Johnson contends that his consecutive sentences violate Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Consecutive sentences, however, do not violate Apprendi when the combined sentence on a multiple-count charge does not exceed the combined maximum for each count. United States v. Noble, 299 F.3d 907, 909 (7th Cir. 2002); see also United States v. Knox, 287 F.3d 667, 669 (7th Cir. 2002) (consecutive sentences are lawful under Apprendi).

  Here, the trial court sentenced Johnson to 60 years imprisonment for the first degree murder conviction and a consecutive 30 year term of imprisonment for the Class X felony of attempted murder, totaling 90 years. Because this sentence does not exceed the combined maximum sentence for a first degree murder and attempted murder under Illinois law, Johnson's Apprendi claim fails. See 730 ILCS 5/5-8-1(a)(1) (first degree murder maximum sentence 60 years); 730 ILCS 5/5-8-1(a)(3) (Class X felony maximum sentence 30 years).

  CONCLUSION

  For these reasons, the Court denies Johnson's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.

20051101

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