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Dwaine Johns v. Guy Pierce*Fn1

February 14, 2011

DWAINE JOHNS, PETITIONER,
v.
GUY PIERCE*FN1 , WARDEN, RESPONDENT.



The opinion of the court was delivered by: Michael M. Mihm United States District Judge

Tuesday, 15 February, 2011 10:16:17 AM Clerk, U.S. District Court, ILCD

ORDER

Now before the Court is Dwaine Johns' ("Johns") Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. For the reasons set forth below, Johns' Petition for Writ of Habeas Corpus [#1] is DISMISSED IN PART with prejudice, and Respondent's Motion to Dismiss [#12] is GRANTED IN PART and DENIED IN PART.

BACKGROUND

Johns was charged with two counts of felony first degree murder in the Circuit Court of Peoria County, Illinois. In 2001, a jury found him guilty on both counts on an accountability theory and he was sentenced to natural life in prison without possibility of parole. The facts presented at trial were that Johns had gone with Jarvis Jackson to collect money from one of the two people killed, Michael Douglas. Jackson shot and killed Douglas and Bertha Diaz and testified that Johns had planned to join Jackson in the robbery, that Johns knew Jackson had a gun with him at the time, and that Johns was standing next to Jackson at the time Jackson shot Diaz.

Johns directly appealed his conviction and the Illinois Appellate Court, Third District, affirmed on December 19, 2003. His petition for leave to appeal in the Illinois Supreme Court was denied on March 24, 2004. Johns did not file a petition for writ of certiorari in the United States Supreme Court. While his direct appeal was ongoing, Johns filed a post-conviction petition in the Circuit Court of Peoria County on February 2, 2004.*fn2 The Circuit Court denied the post-conviction petition and on January 3, 2005, the Illinois Appellate Court affirmed the denial. Johns filed a petition for leave to appeal in the Illinois Supreme Court, which was denied on May 25, 2005. On March 28, 2005, Johns filed a petition for relief from judgment in the Circuit Court of Peoria County. See 735 ILL. COMP. STAT. 5/2-1401(c) (2011) (requiring that a petition under that section be filed not later than 2 years after the entry of the order or judgment from which relief is sought). The Circuit Court granted the State's Motion to Dismiss the petition as untimely. On October 4, 2006, the Illinois Appellate Court affirmed the dismissal of the Section 2-1401 petition as untimely. Johns did not seek further review of that decision.

On June 14, 2007*fn3 , Johns filed an application for leave to file a successive post-conviction petition the Circuit Court of Peoria County. In that successive petition, Johns argued that he had new evidence to show the prosecution knowingly used Jackson's perjured testimony at trial.

That new evidence being an affidavit from Jackson in which he recanted his trial testimony against Johns, and stated that two assistant state's attorneys offered that they would not pursue the death penalty against Jackson if he testified against Johns and that he was coached on what to say. The Circuit Court, after it docketed the successive post-conviction petition, appointed counsel, and conducted a hearing, denied Johns leave to file his successive post-conviction petition. The Circuit Court specifically stated, "[L]eave to file a successive post conviction petition is denied, or even if it has already been allowed to be filed by redocketing, the case cannot survive Stage II; therefore the Petition is dismissed." See Respondent's Exh. I at 5. The Illinois Appellate Court affirmed the Circuit Court's decision after determining that Johns could not demonstrate prejudice, which he had to show in order for the court to consider the merits of his successive petition. The Illinois Supreme Court denied Johns' petition for leave to appeal, but directed the Appellate Court to reconsider its decision affirming the Circuit Court's decision to deny Johns' application to file a successive post-conviction petition in light of a recent Illinois Supreme Court case. Upon reconsideration, the Appellate Court again determined that the Circuit Court properly declined to consider Johns' claim set forth in his successive post-conviction petition. On Septemebr 29, 2010, the Illinois Supreme Court denied Johns' petition for leave to appeal.

On June 2, 2010, Johns filed the instant § 2254 Petition, alleging 1) that the State failed to prove his guilt for felony murder of Douglas based upon an accountability theory, 2) that the State failed to prove his guilt for felony murder of Diaz based upon an accountability theory, 3) that the State failed to prove beyond a reasonable doubt that Johns had the intent to promote or facilitate the offense, and 4) that co-defendant Jackson's affidavit, taken as true, demonstrates Johns' actual innocence and shows the State knowingly used Jackson's perjured testimony at trial in order to get a conviction. Respondent filed its Motion to Dismiss as Untimely, and Johns filed Petitioner's Response/Motion to Strike Respondent's Motion to Dismiss on December 1, 2010. This Order follows.

DISCUSSION

I. Timeliness of Johns' § 2254 Petition

Under 28 U.S.C. § 2244(d)(1), a one year statute of limitations period is applied to § 2254 applications for writ of habeas corpus and runs from:

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;

(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant ...


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