Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 05 C 2475-Marvin E. Aspen, Judge.
The opinion of the court was delivered by: Evans, Circuit Judge
Before BAUER, POSNER, and EVANS, Circuit Judges.
Following a jury trial in state court, Earl Johnson was convicted of murder, attempted first degree murder, and aggravated battery with a firearm. He was sentenced to concurrent terms of 45 years for the murder and 30 years each on the other charges. He appealed, and in an unpublished order on July 21, 1997, the Appellate Court of Illinois affirmed the murder and attempted murder convictions but reversed the aggravated battery conviction. The Supreme Court of Illinois denied leave to appeal. Johnson filed a post-conviction petition, which was denied. He again appealed, and on March 31, 2004, the Appellate Court of Illinois affirmed the denial and the Illinois Supreme Court again denied leave to appeal. Johnson's next stop was the United States District Court for the Northern District of Illinois, where he filed his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. His petition was denied and he now appeals the judgment dismissing his petition.
Unless petitioner has rebutted the presumption of correctness that attaches to the state court findings of fact (and Johnson has not), we presume those facts are correct. 28 U.S.C. § 2254(e)(1). Here, the facts are that three brothers, Dexter, Darryl, and Leo Patterson, were walking down a street in Maywood, Illinois (a Chicago suburb), when Dexter and Leo were hit by gunshots fired from a passing car. Leo died as a result of a wound to his chest; Dexter was treated for a wound to his buttocks, but survived.
Darryl and Dexter testified at trial that before the shooting they had been walking down the street when they heard a man call Leo's name and ask "when are you going to pay my money." Leo said he would pay "next Friday." The man asked again and Dexter said, "Hey, he is going to pay your money." As the brothers continued walking, a dark blue, four-door car drove toward them. From within the car, two people shot at the brothers.
Darryl identified Johnson as one of the shooters- shooting from the back seat, passenger side of the car. Another shooter was in the front seat. Darryl and Dexter ran to Leo's house, which was nearby, where Darryl called the police and then ran outside to where Leo was lying on the grass. Leo was conscious but not talking. He died shortly after arriving at a hospital.
A few days later, Darryl went to the police station and identified a dark blue Skylark as the vehicle from which the shots were fired. Both Darryl and Dexter identified Johnson from a lineup two weeks later and at trial.
Of the many, many issues Johnson has raised in various courts, the only one presented to us is his contention that he was denied the effective assistance of counsel based on three claimed deficiencies in the representation he received in state court.
As with all petitions for writs of habeas corpus, we cannot consider the merits unless the state courts have first had a full and fair opportunity to review the claims. That means first, that the petitioner must have exhausted his state court remedies, which Johnson has done. Further, if a specific claim is not presented to the state court when it is required to be, that claim is defaulted. Farrell v. Lane, 939 F.2d 409 (7th Cir. 1991). A procedural default also occurs when a state court disposes of a claim on an independent and adequate state law ground. Coleman v. Thompson, 501 U.S. 722 (1991). When a petitioner presents a defaulted claim for federal habeas review, we may consider it only if he can establish cause and prejudice for the default or that the failure to consider the claim would result in a fundamental miscarriage of justice.
As to claims which we do consider, we "shall not" grant the writ on any claim that was, in fact, considered on the merits in the state court, unless the state court decision was contrary to or involved an unreasonable application of clearly established federal law as determined by the United States Supreme Court, or resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings. 28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 376 (2000). The Court has recently reemphasized that a state court's application of clearly established law is acceptable, even if it is likely incorrect, so long as it is reasonable. Wright v. Van Patten, ___ S.Ct. ___, 2008 WL 59980 (2008). If, however, the state court decision is "contrary to" or an "unreasonable application of" clearly established federal law as determined by the Supreme Court, then our consideration is de novo. Wiggins v. Smith, 539 U.S. 510 (2003); see also Williams, 529 U.S. 362.
With these principles in mind, we turn to Johnson's claims that he was denied the effective assistance of counsel during the proceedings in state court. Johnson says that his counsel was ineffective for declining the offer of a mistrial after some of his alibi witnesses were precluded from testifying, for failing to pursue obvious lines of investigation, and for failing to impeach Dexter by the hospital records showing that his blood alcohol level was .289 on the night of the offense. The Illinois Appellate Court referred to Strickland v. Washington, 466 U.S. 668 (1984), to evaluate the claim of ineffective assistance. We say "referred to" rather than, for instance, "properly used" because Johnson contends that the decisions of the state appellate court are "contrary to" Strickland in that they show a misunderstanding of the standards set out in that case.
Johnson claims the state appellate court made two errors. The first arises in the decision on direct appeal. The Illinois court said that Strickland "prohibits judging ineffectiveness by second-guessing the actions of defense counsel." The use of the word "prohibits" is what Johnson objects to. However, immediately after this sentence, the court quotes Strickland on this point:
Judicial scrutiny of counsel's performance must be highly deferential; a court must resist the temptation to second-guess counsel's actions and ...