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United States ex rel Johnson v. Hulick

December 16, 2008

UNITED STATES OF AMERICA EX REL. SHERMAN JOHNSON, PETITIONER,
v.
DON HULICK, DEFENDANT.



The opinion of the court was delivered by: Samuel Der-yeghiayan, District Judge

MEMORANDUM OPINION

This matter is before the court on Petitioner Sherman Johnson's ("Johnson") petition for a writ of habeas corpus ("Petition"). For the reasons stated below, we deny the Petition.

BACKGROUND

Johnson was charged in connection with the murder of a tenant in the building where he sold drugs. People v. Johnson, No.1-97-3732 (Ill. App. Ct. 1999). After a bench trial in the Circuit Court of Cook County, Illinois, Johnson was convicted of first degree murder, solicitation of murder for hire, solicitation of murder, and conspiracy to commit murder. The court sentenced Johnson to life imprisonment. On June 18, 1999, the Illinois Appellate Court affirmed Johnson's conviction and sentence. On October 6, 1999, the Illinois Supreme Court denied Johnson's petition for leave to appeal. Johnson subsequently filed a post-conviction petition for collateral review of his conviction in the Circuit Court of Cook County, Illinois. The court dismissed Johnson's post-conviction petition without an evidentiary hearing on February 3, 2005. On September 28, 2007, the Illinois Appellate Court affirmed the dismissal of the post-conviction petition. Johnson then filed a petition for leave to appeal to the Illinois Supreme Court. On January 30, 2008, the Illinois Supreme Court denied Johnson's petition for leave to appeal. Johnson has now brought the instant pro se petition for a writ of habeas corpus.

LEGAL STANDARD

A district court may entertain a habeas corpus petition from a "person in custody pursuant to the judgment of a State court only on the grounds that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Pursuant to 28 U.S.C. § 2254, a writ of habeas corpus will not be granted unless "the applicant has exhausted the remedies available in the courts of the State; . . . or there is an absence of available State corrective process; or . . . circumstances exist that render such process ineffective to protect the rights of the applicant." 28 U.S.C. § 2254(b)(1). A federal court can only grant a habeas petition "if the state court's decision: (1) was 'contrary to . . . clearly established Federal law, as determined by the Supreme Court of the United States'; or (2) 'involved an unreasonable application of . . . clearly established Federal law, as determined by the Supreme Court of the United States.'" McDowell v. Kingston, 497 F.3d 757, 761 (7th Cir. 2007)(quoting in part 28 U.S.C. § 2254(d)(1)). The decision by a state court is deemed to be "'contrary to' clearly established federal law if the state court either 'applies a rule that contradicts the governing law' set forth by the Supreme Court or decides a case differently than the Supreme Court has on materially indistinguishable facts." Id. (quoting in part Williams v. Taylor, 529 U.S. 362, 405 (2000)).

DISCUSSION

In Johnson's pro se Petition, Johnson alleges: (1) that the State failed to present sufficient evidence to support his conviction, (2) that the trial court abused its discretion when it admitted out of court statements by a co-conspirator named Michelle Clopton ("Clopton") since such statements lacked foundation, contained hearsay, failed to fall under the co-conspirator exception to the hearsay rule, and the admission of such evidence violated the Confrontation Clause, (3) that the trial court abused its discretion when it admitted evidence of Johnson's drug related activity to prove motive, (4) that the evidence did not support a sentence of natural life in prison and such a sentence was an abuse of discretion,(5) that the trial court erred when it denied Johnson's motion to reconsider his sentence, and (6) that Johnson's trial counsel was ineffective since he failed to object to the admissibility of Clopton's statements, since he failed to interview or call three potential defense witnesses, and since his counsel had a conflict of interest that Johnson did not knowingly waive. The Government filed an answer to these claims arguing that many of the claims are non-cognizable and procedurally defaulted. The Government argues that, with respect to the non-defaulted claims, Johnson has not shown a violation of his constitutional rights.

I. Non-cognizable and Procedurally Defaulted Claims

Before addressing the merits of Johnson's Petition, the court must determine whether Johnson's allegations are procedurally defaulted. Bocian v. Godinez, 101 F.3d 465, 468 (7th Cir. 1996). A habeas claim is defaulted when: (1) the petitioner has not exhausted state court remedies, or (2) the petitioner fails to comply with a state court procedural rule. Moore v. Parke, 148 F.3d 705, 708 (7th Cir. 1998).

A. Unexhausted Claims

The Government argues that Johnson's claim that admission of certain statements by Clopton violated the Confrontation Clause was not adequately presented to the state courts for review and is, thus, procedurally defaulted. A federal court will not review a habeas claim when the petitioner has not exhausted all state court remedies with respect to that claim. McGowan v. Miller, 109 F.3d 1168, 1172 (7th Cir. 1996). To exhaust all state court remedies, the petitioner "must present . . . federal constitutional claims initially to the state courts." Id. In order to fairly present a claim to the state courts, a petitioner is required to "assert his federal claim through one complete round of state-court review, either on direct appeal of his conviction or in post-conviction proceedings." Malone v. Walls, 538 F.3d 744, (7th Cir. 2008). The Government points out that, while Johnson raised his Confrontation Clause claim in his post-conviction petition at the trial court level, he did not assert such a claim in his appeal from the denial of his post-conviction petition, or at any time on the direct appeal of his conviction. Thus, Johnson's Confrontation Clause argument has not been presented for a "complete round" of review to the Illinois courts and his claim is procedurally defaulted. Id.

The Seventh Circuit has recognized two circumstances where a petitioner can excuse a procedural default, and thus can raise the allegation in a habeas petition. Spreitzer v. Schomig, 219 F.3d 639, 647 (7th Cir. 2000). These two exceptions are (1) when the petitioner "show[s] cause and prejudice for his failure to exhaust his claims . . ." and (2) when the petitioner "show[s] that a failure to review these claims results in a fundamental miscarriage of justice." Id. at 647-48.In this case however, Johnson has not argued, in either his Petition or his reply to the Government's answer, that there is good cause or prejudice for his failure to exhaust the claims, and there is no indication that procedural default of such a claim would be a fundamental miscarriage of justice. See Bell v. Pierson, 267 F.3d 544, 555 n.6 (7th Cir. 2001)(finding that cause and ...


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