United States District Court, N.D. Illinois, Eastern Division
John F. Johnson, Petitioner,
Randy Pfister, Warden, Respondent.
MEMORANDUM OPINION AND ORDER
S. Shah United States District Judge.
Johnson is serving a 34-year sentence in state custody for
the solicitation of murder. While housed in the DuPage County
Jail, Johnson asked another inmate, Curtis Washington, to
find a hitman to shoot Johnson's ex-wife twice in the
head, in exchange for $1, 500. People v. Johnson,
2012 IL App (2d) 101025-U (2d Dist. 2012); [18-1] at 2-3;
People v. Johnson, 2015 IL App (2d) 130165-U (2d
Dist. 2015); [18-3] at 1. After an investigation that included
recorded conversations, Johnson was charged with solicitation
of murder, he represented himself at trial, a jury found him
guilty, and after pursuing appeals and post-conviction
proceedings in state court, Johnson now petitions for a writ
of habeas corpus. 28 U.S.C. § 2254.
of finding a hitman, Washington spoke to Detective Harris of
the DuPage County sheriff's office. Harris then applied
for a state-court order to authorize the recording of
conversations between Washington and Johnson. Washington
consented to the recording, and a state-court judge issued
the order. The court issued a second order authorizing the
recording of conversations between Johnson and an undercover
detective who posed as the hitman. The police staged a photo
of the ex-wife depicting her bound and laying in a wooded
area. The undercover detective showed the photo to Johnson,
to confirm that the murder had taken place. In addition to
recording Johnson's conversations with Washington and the
hitman, detectives later recorded their interrogation of
Johnson. Johnson invoked his right to counsel during the
interrogation, and so the trial court suppressed those
statements made after invocation of the right to counsel.
represented himself at trial, with an attorney appointed as
standby counsel. Washington testified that Johnson asked
Washington to find someone to murder the ex-wife, and gave
Washington a slip of paper with the ex-wife's address on
it. The prosecution played recorded conversations between
Washington and Johnson and between Johnson and the undercover
detective. The undercover detective testified about showing
Johnson the staged photo of the victim.
testified in his own defense, admitted that he said
“some terrible, some horrible things” to
Washington, but disclaimed any intent to have his ex-wife
killed. [18-1] at 17. He said he was just venting. The trial
court permitted the prosecution, in its rebuttal case, to
play excerpts of Johnson's videotaped
interrogation-including parts that had been suppressed based
on the violation of Johnson's right to counsel-to impeach
Johnson's trial testimony. Johnson did not object. The
jury found Johnson guilty, and the trial court sentenced him
to 34 years in prison.
unsuccessfully challenged his conviction through the state
courts. Federal review of these state-court decisions is
limited. With respect to a state court's
determination of an issue on the merits, habeas relief can be
granted only if the decision “was contrary to, or
involved an unreasonable application of, clearly established
Federal law, ” or “was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.” 28 U.S.C. §
2254(d)(1)-(2); see also Harrington v. Richter, 562
U.S. 86, 97-98 (2011). Claims that do not raise a question of
federal law are not cognizable in a federal habeas petition.
Estelle v. McGuire, 502 U.S. 62, 68 (1991).
a state court resolves a federal claim by relying on a state
law ground that is both independent of the federal question
and adequate to support the judgment, federal habeas review
of the claim is foreclosed.” Kaczmarek v.
Rednour, 627 F.3d 586, 591 (7th Cir. 2010) (citing
Woods v. Schwartz, 589 F.3d 368, 373 (7th Cir.
2009); Coleman v. Thompson, 501 U.S. 722, 729
(1991)); see also Richardson v. Lemke, 745 F.3d 258,
268 (7th Cir. 2014). Claims resolved on an independent and
adequate state-law ground are considered procedurally
defaulted, and procedural default can be excused only if the
petitioner can show both cause for and prejudice from the
default or can demonstrate that the failure to consider the
claim would result in a fundamental miscarriage of justice.
Richardson, 745 F.3d at 268, 272. A habeas
petitioner must also assert his federal claim at each level
of state-court review, or else that claim is procedurally
defaulted. King v. Pfister, 834 F.3d 808, 815 (7th
appealed his conviction, and raised two issues relevant here:
(1) that the eavesdropping orders were illegal; and (2) the
use of his suppressed statements to impeach him was improper.
The state appellate court found no error in the eavesdropping
orders, and held that Johnson forfeited his impeachment issue
by failing to object at trial. The court also found that the
uncounseled statements were properly admitted for impeachment
because they were inconsistent with Johnson's trial
testimony. The Illinois Supreme Court denied review.
his direct appeals, Johnson filed a petition for relief from
judgment and argued that the grand jury that indicted him was
not properly empaneled and sworn; the trial court dismissed
the petition as without merit because it found that the grand
jury was empaneled and sworn. [18-6]. Johnson next filed a
post-conviction petition. He raised the same claims as in his
direct appeal, and again claimed the grand jury was not
properly empaneled. [18-16] at 33, 48, 53. He argued that the
prosecution knowingly presented perjured testimony from
Washington and that he was entrapped. [18-16] at 72, 45. He
also argued that his appellate counsel was ineffective for
not raising the grand-jury claim. [18-16] at 69. The court
dismissed the petition as frivolous and patently without
merit. [18-2]. Johnson appealed.
appellate court found that Johnson's claims concerning
the recordings and his impeachment were adjudicated on direct
appeal and could not be revisited. [18-3] at 3-4. It held
that Johnson could not raise his entrapment claim in a
post-conviction petition because he did not raise it at trial
(in fact, he affirmatively said he was not arguing
entrapment) or on direct appeal. [18-3] at 4. It rejected the
grand-jury claim because documents in the record
“establish that the grand jury that indicted defendant
was properly sworn and impaneled.” [18-3] at 5. Because
the grand-jury issue had no merit, the appellate court found
that Johnson's appellate lawyer was not ineffective.
[18-3] at 5. Illinois law requires that a post-conviction
petition include affidavits or evidence supporting its
allegations. 725 ILCS 5/122-2. The appellate court held that
Johnson's failure to comply with this requirement for his
perjury claim justified its dismissal. [18-3] at 5-6. It also
found that Washington's purported post-trial statement
was not a recantation of his trial testimony and did not
support a claim that Washington committed perjury at trial.
[18-3] at 6. The Illinois Supreme Court denied Johnson's
petition for leave to appeal.
federal habeas petition, Johnson says the recordings used
against him at trial should have been suppressed under the
federal constitution. This is not the claim he made on direct
appeal. Johnson cited Illinois v. Gates, 462 U.S.
213 (1983), in his direct appeal, but he was not asserting a
violation of the Fourth Amendment with respect to the
eavesdropping orders. He made an analogy with respect to
Illinois v. Gates, but explicitly disavowed a Fourth
Amendment claim because there was no Fourth Amendment
issue-the eavesdropping was done with one party's consent
and no invasion of a federally recognized expectation of
privacy occurred. See [18-4] at 11 (Johnson's
petition acknowledging that the Fourth Amendment is not
implicated when one party consents to interception); [18-7]
at 36. Procedural default blocks the review of any
federal-law argument to suppress the recordings, and Johnson
asserts no excuse for failing to present the claim to the
state courts in the first instance.
argues that the use of his confession for impeachment
purposes violated the constitution. But the state court
resolved this claim on the ground that Johnson failed to
object to the evidence at trial. That is an independent and
adequate state-law ground; the claim is procedurally
defaulted for federal habeas review. Richardson, 745
F.3d at 268-69. Moreover, the state appellate court
alternatively addressed the merits of Johnson's
impeachment claim and did so consistently with federal law.
The appellate court held that the suppressed statements were
inconsistent with Johnson's trial testimony and could be
used to impeach him. This was a reasonable application of
United States Supreme Court precedent. Michigan v.
Harvey, 494 U.S. 344, 350-51 (1990) (citing Harris
v. New York, 401 U.S. 222 (1971); Oregon v.
Hass, 420 U.S. 714 (1975)); see [18-1] at 20
(citing Harris, 401 U.S. at 225-26; Hass,
420 U.S. at 721-23).
claim that the grand jury was not properly empaneled is not a
viable claim. There is no federal right to a grand jury in
state prosecutions. Hurtado v. People of State of
Cal., 110 U.S. 516, 534-35 (1884); Bae v.
Peters, 950 F.2d 469, 478-79 (7th Cir. 1991);
Ashburn v. Korte, 761 F.3d 741, 758 (7th Cir. 2014).
The record demonstrates that Johnson well knew the nature of
charges against him- whether or not the grand jury was
empaneled as required by state law-and in representing
himself at trial, Johnson had a fair opportunity to defend
himself. There was no federal due process violation in
initiating the prosecution.
failed to submit an affidavit or evidence of Washington's
perjury with his post-conviction petition, and for that
reason, the state courts rejected the perjury claim. Failing
to comply with Illinois's affidavit rule leads to
procedural default on federal habeas review. Thompkins v.
Pfister, 698 F.3d 976, 986-87 (7th Cir. 2012). In
addition, the state appellate court concluded that
Johnson's proffer concerning Washington's recantation
did not indicate that Washington committed perjury. There was
no basis for a claim under Napue v. Illinois, 360
U.S. 264, 269- 70 (1959), if the prosecution's case did
not include perjured ...