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Johnson v. Foster

United States Court of Appeals, Seventh Circuit

May 6, 2015

STEVEN D. JOHNSON, Petitioner-Appellant,
v.
BRIAN FOSTER, Respondent-Appellee

Argued September 12, 2014.

Appeal from the United States District Court for the Eastern District of Wisconsin. No. 11-CV-1137 -- Nancy Joseph, Magistrate Judge.

For STEVEN D. JOHNSON, Petitioner - Appellant: Thomas M. Dunham, Attorney, WINSTON & STRAWN LLP, Washington, DC; Phoebe N. Coddington, Attorney, WINSTON & STRAWN LLP, Charlotte, NC.

For BRIAN FOSTER, Warden, Respondent - Appellee: William L. Gansner, Attorney, OFFICE OF THE ATTORNEY GENERAL, Wisconsin Department of Justice, Madison, WI.

Before EASTERBROOK, SYKES, and TINDER, Circuit Judges.

OPINION

Page 502

Sykes, Circuit Judge.

A jury convicted Steven Johnson of several state gun crimes arising out of a shootout in Milwaukee. He challenged his convictions in a state post-conviction motion, but the trial court denied the motion and the state court of appeals affirmed. Johnson had 30 days to petition for review by the Wisconsin Supreme Court. He applied for a loan from the prison Business Office to help cover the cost of the paper, photocopying, and postage necessary to file the petition; Wisconsin law permits inmates to borrow up to $100 annually for tat purpose. The Business Office denied his request, but Johnson contends that he met the eligibility requirements and the loan was unlawfully denied.

Johnson never filed a petition for review in the state supreme court. Instead, he sought federal habeas relief under 28 U.S.C. § 2254. Federal courts are normally precluded from reviewing the habeas claims of state prisoners who procedurally default their claims by failing to present them through one full round of state-court review. A default can be excused, however, if the prisoner shows that prison officials interfered with his ability to comply with the state court's procedural rules.

Page 503

Johnson argues that the wrongful denial of his loan request should excuse his failure to petition the state supreme court for review.

The district court rejected this argument, and we affirm. Johnson has not established that the denial of his loan application was an objective, external impediment to his ability to comply with the state court's procedural rules or that it actually prevented him from petitioning for review in the Wisconsin Supreme Court. Moreover, Johnson's argument rests on his contention that the Business Office misinterpreted or misapplied prison policies governing the loan program. No state court has ruled on that question. For a federal habeas court to excuse a procedural default based on its own interpretation of a state prison policy--without guidance from the state courts--would be starkly contrary to the principles of federalism and comity that constrain all federal habeas review.

I. Background

On November 8, 2007, Steven Johnson exchanged gunfire with his ex-girlfriend's brother-in-law in the parking lot of a Milwaukee-area Family Dollar store. He was charged with four gun crimes under Wisconsin law. A jury found him guilty on all counts, and he was sentenced to 22 years in prison.

Johnson alleges in his federal habeas petition that two constitutional violations occurred during his state-court proceedings: First, the court refused to continue the preliminary hearing in order to give him time to hire the lawyer of his choice, and later it denied his multiple requests to represent himself.

Johnson attempted to raise these and other claims in a direct appeal. Because his filing was untimely, however, the trial court construed it as a motion for postconviction relief under section 974.06 of the Wisconsin Statutes and denied it. Johnson timely appealed that ruling to the Wisconsin Court of Appeals.

The appeal remained pending for well over two years. At some point Johnson sought reinstatement of his direct appeal rights but that motion was denied. In December 2011, while his appeal was still pending, he filed a premature ยง 2254 petition in federal district court seeking habeas review. On April 19, 2012, before the federal court took up his habeas petition, the Wisconsin Court of Appeals affirmed the denial of his postconviction motion. Johnson had 30 days from that date to ...


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