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United States ex rel Johnson v. Chambers

September 14, 2006


The opinion of the court was delivered by: Marvin E. Aspen, District Judge


On November 7, 1994, a jury convicted Petitioner Earl Johnson ("Petitioner" or "Johnson") of the first degree murder of Leo Patterson and the attempted first degree murder of Dexter Patterson.*fn1 Following the denial of his appeal and post-conviction petition, Johnson petitioned this Court for a writ of habeas corpus, which we denied on June 7, 2006. See Johnson v. Chambers, No. 05 C 2475, 2006 WL 1594025, at *14 (N.D. Ill. June 7, 2006) [hereinafter "Order"]. Presently before us is Johnson's motion for a certificate of appealability ("COA"). For the reasons set forth below, we grant Johnson's request for a COA in part.


A COA is required to take an appeal to the Court of Appeals from a final order in a proceeding under 28 U.S.C. §§ 2254 or 2255. 28 U.S.C. § 2253(c). "A certificate of appealability may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). The Supreme Court in Slack v. McDaniel, 529 U.S. 473, 483-484, 120 S.Ct.1595, 1603-1604 (2000), laid out two methods by which a district court is to evaluate a request for a COA. First, when the district court rejects a petitioner's constitutional claims on the merits, "[t]he petitioner must demonstrate that reasonable jurists would find the district court's assessments of the constitutional claims debatable or wrong," id. at 484, or that "the issues presented were 'adequate to deserve encouragement to proceed further,'" id. (quoting Barefoot v. Estelle, 463 U.S. 880, 893 & n.4, 103 S.Ct. 3383, 3395 (1983)). Alternatively, "when the district court reject[s] a petitioner's claims on procedural grounds without reaching the prisoner's underlying constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Id. at 484 (emphasis added).


Johnson seeks a COA as to multiple issues relating to his ineffective assistance of counsel claim. First, he alleges that reasonable jurists would debate our procedural decision that he waived his claim that trial counsel was ineffective for failing to cross-examine eye witness Dexter Patterson about his blood alcohol content at the time of the shooting. (Request for COA at 5-11.) Second, he contends that reasonable jurists would debate our substantive decisions that counsel was not ineffective, and/or that he was not prejudiced, by counsel's: (1) failure to request a mistrial after four alibi witnesses were barred from testifying; (2) failure to investigate and present testimony from additional witnesses; (3) failure to cross-examine his uncle, Frederick Johnson, with records evidencing his mental handicap; (4) eliciting evidence and making arguments that damaged the defense; and (5) failing to request a limiting instruction concerning the jury's consideration of evidence of defense witnesses' prior convictions. (Id. at 11-33.) We address each argument in turn.

A. Procedural Default Ruling

Johnson claims that he fully and fairly presented to the state court his federal claim that counsel was constitutionally ineffective for failing to cross-examine Dexter Patterson using a document showing his blood alcohol content was .289 at the time of the shooting. (Id. at 8.) Johnson admits that he did not raise this issue in his initial or supplemental post-conviction petitions but argues that he presented evidence to the state court at his post-conviction evidentiary hearing. According to Johnson, this evidence "was sufficient to alert the state court that this factor was a basis for [his] ineffective assistance of counsel claim." (Id.) He then raised this issue on appeal of the dismissal of his post-conviction petition and in his petition for leave to appeal ("PLA") with the Illinois Supreme Court. In affirming the dismissal, the appellate court held that Johnson waived this argument by failing to include it in his supplemental post-conviction petition.*fn2 People v. Johnson, No. 1-02-1116, slip. op. at 8 (1st Dist. Mar. 31, 2004). We agreed with the appellate court's conclusion in our Order. Order, 2006 WL 1594025, at *5. Nonetheless, we will grant Johnson a COA on this issue because reasonable jurists could theoretically debate whether he sufficiently articulated this issue at the evidentiary hearing and whether counsel's failure to fully cross-examine Dexter Patterson violated Johnson's Sixth Amendment right to counsel.

Fair presentment requires a petitioner "to assert his federal claim through one complete round of state-court review, either on direct appeal or in post-conviction proceedings." Lewis v. Sternes, 390 F.3d 1019, 1025 (7th Cir. 2004). "This means that the petitioner must raise the issue at each and every level in the state court system, including levels at which review is discretionary rather than mandatory." Id. Although Johnson neglected to include this argument in his petition, his post-conviction counsel did address the issue (however briefly and indirectly) while examining Johnson's trial attorney, Milton Blum, at the evidentiary hearing on April 16, 2002.*fn3 Johnson's counsel questioned Blum about a medical report indicating that Dexter Patterson was heavily intoxicated on the night of the shooting. (Tr. Post-Conv. Proceedings at A-82-86.) Responding to an objection from the state's attorney, Johnson's counsel described the significance of the medical report, commenting that "the purpose for . . . this information is that we have to show prejudice; that if there was a new trial, the newly discovered evidence could have made a difference in the outcome." (Id. at A-85-86.) The court refused to admit the report into evidence, finding that it was not newly discovered. (Id. at A-86.) Counsel touched on the fact that Blum possessed but failed to use the report at trial, which suggests that Johnson intended an alternative ineffective assistance of counsel claim. Given Johnson's prejudice argument before the state court, we conclude that reasonable jurists could debate whether he fairly raised this issue in the context of an ineffective assistance claim. See Strickland v. Washington, 466 U.S. 668, 688, 696, 104 S.Ct. 2052, 2064-2065, 2069 (1984) (requiring defendant to show objectively unreasonable representation and resulting prejudice to make out an ineffective assistance claim). In addition, we believe reasonable jurists would debate whether Blum's performance was unreasonably deficient and prejudicial to Johnson's defense.

B. Ineffective Assistance Rulings

1. Failure to Request a Mistrial

During cross-examination of Darryl Patterson (Dexter's brother and the other eyewitness to the crime) at Johnson's trial, Blum informed the court that certain defense witnesses were present in the courtroom despite an exclusion order. (Trial Tr. at G-61.) The court then forbade four witnesses, including Johnson's mother and brother, from testifying. (Id. at G-62-65.) Although not promising to grant a motion, the trial judge suggested that Blum request a mistrial and granted a recess for him to discuss the matter with Johnson. (Id. at G-66.-69.) ("I'm not telling you that you are going to get it, I'm telling you right now you have to make a decision.") After the recess, Blum announced that the defense would proceed, being "well aware of what the risk might be, of course." (Id. at G-71.) When Blum added that they did not know whether the court would have granted a mistrial, the judge responded that he "yes, absolutely" would have done so. (Id.) Blum acknowledged that "he kind of knew it" and asked when the next trial date would be had a mistrial been granted. (Id.) Johnson argues that Blum was ineffective for failing to seek a mistrial, particularly in light of the judge's apparent willingness to grant such a request. Like three defense witnesses who testified, these four witnesses allegedly would have stated that they were with Johnson at his house watching a movie at the time of the shooting.

As noted in our Order, the decision whether to move for mistrial or to proceed with the expectation of acquittal is generally considered a matter of trial strategy, entitled to deference. Reasonable jurists, however, would debate whether Blum should have requested a mistrial under the circumstances described above. The judge, for example, may have been amenable to a motion for a mistrial even after announcing how he would decide. Although we believe our Order is correct, we grant Johnson a COA on this issue because reasonable jurists could also debate whether ...

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