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United States ex rel Johnson v. Gaetz

May 24, 2010

UNITED STATES EX REL CLIFTON JOHNSON, (#R30286), PETITIONER,
v.
DONALD GAETZ, WARDEN, MENARD CORRECTIONAL CENTER, RESPONDENT.



The opinion of the court was delivered by: Amy J. St. Eve, District Court Judge

MEMORANDUM OPINION AND ORDER

Before the Court is Petitioner Clifton Johnson's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254(d)(1). For the following reasons, the Court denies Johnson's habeas petition.

BACKGROUND

Johnson does not present clear and convincing evidence challenging the statement of facts set forth in the Illinois Appellate Court's opinions, and thus the Court presumes those facts are correct for purposes of its habeas review. See 28 U.S.C. § 2254(e)(1); Rever v. Acevedo, 590 F.3d 533, 537 (7th Cir. 2010). The Court therefore adopts the underlying facts as set forth by the Illinois Appellate Court in People v. Johnson, No. 1-04-1948 (Ill.App.Ct. 2006) (unpublished), and People v. Johnson, 1-07-0885 (Ill.App.Ct. 2008) (unpublished).

I. Factual Background

On December 25, 1998, Robinson Ellis and his fiancee, who lived in Chicago, Illinois, were preparing to have a party. At trial, a witness testified that Ellis left his home at approximately 10:45 p.m. to buy more party supplies after which Ellis met Torey Rainey outside. Rainey testified at trial that he and Ellis saw Johnson along with four other people, including Jason Smith, across the street. Rainey further testified that Ellis called out to the group "Who is that?" to see whether they were coming to the party. Johnson then spoke with one of the women in the group and crossed the street with Smith. Johnson and Smith then approached Ellis and Rainey and Johnson said, "What the fuck did you all say?" Rainey responded, "No one said anything to you at all. We thought you all were coming to the party, so it was a misunderstanding."

Subsequently, Johnson asked Ellis, "What's that you're drinking on?" to which Ellis responded "None of your fucking business." As Ellis turned away, Johnson jumped in front of him, pulled out a gun, pointed it directly at Ellis' head, and pulled the trigger, but the gun did not go off. Thereafter, Ellis threw his drink in Johnson's face and then grabbed Johnson to wrestle the gun away from him. Both Ellis and Johnson threw punches. During the altercation, the gun fired, but the two continued to wrestle. Rainey testified that he saw the gun in Johnson's hand. Rainey further testified that he heard two more shots and saw Ellis break away, run home, and collapse on the porch. As a result, Ellis died.

After the police arrested Johnson, they made a videotape of his statement, which was shown at trial. In his statement, Johnson admitted that he consumed alcohol and smoked marijuana at his home immediately prior to the altercation. He also admitted that he and Smith crossed the street because he thought that Rainey and Ellis were disrespecting them. He claimed that he fired the gun because he was afraid that if Ellis took the gun from him, Ellis would shoot him.

II. Procedural Background

In March 2004, at the conclusion of Johnson's bench trial, the Circuit Court of Cook County convicted Johnson of one count of first degree murder and sentenced him to a term of thirty years in the Illinois Department of Corrections. Johnson appealed to the Illinois Appellate Court arguing that his conviction for first degree murder should be reduced to second degree murder because he acted under adequate provocation resulting from mutual combat. On February 24, 2006, the Illinois Appellate Court affirmed Johnson's conviction. Johnson filed a petition for leave to appeal ("PLA") in the Supreme Court of Illinois raising the same claim. On September 27, 2006, the Supreme Court of Illinois denied Johnson's PLA. Johnson did not file a petition for a writ of certiorari in the United States Supreme Court.

On January 4, 2007, Johnson filed a pro se petition under the Illinois Post-Conviction Hearing Act, 725 ILCS 5/122-1, et seq., raising three claims: (1) his trial counsel provided ineffective assistance of counsel for (a) failing to discover on pretrial investigation that Johnson was dyslexic, and (b) failing to move to suppress Johnson's videotaped statement on the ground that his dyslexia rendered his Miranda waiver unknowing or involuntary; (2) his appellate counsel provided ineffective assistance of counsel for failing to raise the issue of trial counsel's ineffectiveness on direct appeal; and (3) he is actually innocent of first degree murder.

The Circuit Court of Cook County dismissed Johnson's post-conviction petition as frivolous and patently without merit on March 9, 2007. Johnson appealed arguing that the post-conviction trial court erred in dismissing his claim that his defense counsel was constitutionally ineffective for failing to move to suppress his statement on the ground that he is dyslexic. On November 6, 2008, the Illinois Appellate Court affirmed the trial court concluding that Johnson's failure to attach the necessary documentation to support his allegation that he is dyslexic justified the post-conviction trial court's summary dismissal. Johnson filed a petition for rehearing that the Illinois Appellate Court denied on December 4, 2008. Johnson then filed a PLA arguing that the trial and appellate courts erred by dismissing his claim that counsel provided ineffective assistance of counsel for failing to move to suppress his confession based on his dyslexia. On March 25, 2009, the Supreme Court of Illinois denied Johnson's post-conviction PLA.

III. Habeas Petition

On March 8, 2010, Johnson filed the present pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. ยง 2254(d)(1). Construing his pro se allegations liberally, see McGee v. Bartow, 593 F.3d 556, 565-66 (7th Cir. 2010), Johnson's habeas claims include: (1) his conviction for first degree murder should be reduced to second degree murder; (2) appellate counsel on direct appeal provided ineffective assistance of counsel for failing to argue that trial counsel was ineffective; (3) he is actually innocent of first degree murder; (4) trial counsel provided ineffective assistance of counsel for: (a) failing to move to suppress evidence; (b) failing to move to ...


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