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U.S. EX REL. JOHNSON v. BATTAGLIA

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 Sept. 28, 2001) (unpublished order); People v. Johnson, No. 1-02-1236 (Ill.App.Ct. Dec. 31, 2003) (unpublished order).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 ...


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