Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 05 C 4302-Samuel Der-Yeghiayan, Judge.
The opinion of the court was delivered by: Sykes, Circuit Judge.
Before KANNE, EVANS, and SYKES,Circuit Judges.
Kathrean Johnson was convicted of first-degree murder after she shot and killed King "Mickey" Holzendorf outside of Jones City Tire Shop in Chicago. After an unsuccessful direct appeal and post-conviction proceedings in the Illinois state courts, she filed a habeas petition in the district court. The court denied the petition because the claims she presented for federal habeas review were different from those she had presented to the state court.
We affirm. On appeal, Johnson has tried to recast her habeas claims to conform more closely to the ineffective-assistance-of-counsel claims she asserted in the post-conviction proceedings in state court. But arguments raised for the first time on appeal are waived. Because the grounds for relief Johnson included in her habeas petition differ markedly from those she presented in state court, they are procedurally defaulted. Having failed to include in her habeas petition the claims she fairly presented in the state court, she cannot now resurrect them on appeal. Even if Johnson could overcome these procedural irregularities, she would lose on the merits. The state appellate court did not unreasonably reject Johnson's ineffective-assistance-of-counsel claims.
Kathrean Johnson was convicted of first-degree murder after a bench trial in Cook County Circuit Court. The evidence presented at trial established that Johnson fatally shot an unarmed co-worker at a Chicago tire shop after an argument about the volume of a shop's radio. More specifically, on a Saturday afternoon in the late spring of 1999, Johnson was working at the Jones City Tire Shop in Chicago. She and fellow employee King "Mickey" Holzendorf had a rocky relationship and on that day were arguing over the volume of the shop's radio. The two began scuffling after Johnson tried to lower the volume. The shop's owner, Henry Hughes, asked Johnson to leave the shop. Johnson did so but returned a short time later and told Erby Taylor, another co-worker, that she had retrieved a gun from her apartment, which she hid in her jacket. Taylor paid no attention, and Johnson resumed her work.
The dispute soon flared again and spilled outside where Holzendorf was working on a car in the shop's yard. As Johnson and Holzendorf continued their argument, Eugene Hardrick, another co-worker, came outside on his way to the grocery store across the street. Hardrick testified that Holzendorf had nothing in his hands and that Johnson was wearing a jacket in which she had a gun. Johnson pulled the gun out of her jacket pocket and shot once towards Holzendorf's feet. He jumped back and held out his hands to show they were empty. Johnson then raised the gun and shot Holzendorf in the chest.*fn1
At the sound of gunfire, Hughes came out of his shop and asked Johnson why she had shot Holzendorf, who was his cousin. Johnson told Hughes that if he didn't back away from her, she would shoot him as well. Hughes stepped back and walked over to where Holzendorf lay on the ground. Neither he nor Taylor (who had come out of the shop a few moments before Hughes) noticed any weapons near Holzendorf's body. In the meantime, Hardrick went to the grocery store across the street and called the police.
After the shooting Johnson became frightened and took a cab back to her apartment. She changed coats and was about to leave the building when police arrived and arrested her. At the police station, Johnson agreed to make a statement to Assistant State's Attorney Andreana Turano-Michiels, who transcribed the statement by hand. In it Johnson admitted that Holzendorf was unarmed and that she shot him at close range.
The state's evidence at trial consisted primarily of testimony from Taylor, Hughes, and Hardrick. Johnson's confession was also admitted into evidence. Johnson took the stand in her own defense and testified in contradiction of her prior statement. In addition, the parties stipulated that a toxicology analysis confirmed that Holzendorf had cocaine, morphine, and ethanol in his blood at the time of his death.
The state trial court entered its findings into the record at the close of evidence. The judge refused to credit John-son's trial testimony because she was "elusive" on cross-examination and "parried with the State's attorney." On the other hand, the court said, "[A]ll of the state's witnesses testified very forthrightly and credibly." Based on these credibility determinations and its evaluation of the evidence, the court found Johnson guilty of first-degree murder and sentenced her to 25 years in prison.
Johnson's conviction was affirmed on appeal, and she then filed a pro se petition for post-conviction relief in the circuit court, claiming (along with other arguments not relevant here) that she had received ineffective assistance of counsel. The circuit court denied relief, and the Illinois Appellate Court affirmed. After the Illinois Supreme Court denied leave to appeal, Johnson filed a pro se petition for a writ of habeas corpus in the district court. In her petition, Johnson generically asserted a violation of her right to the effective assistance of counsel and also included a variety of other claims. Noting that the grounds for relief in Johnson's habeas petition had shifted from those she asserted in state court, the district court held that she had procedurally defaulted her claims and denied the petition.
We issued a certificate of appealability on two questions: whether Johnson's habeas claims were procedurally defaulted and whether Johnson's trial counsel was ineffective in failing to develop certain ...