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Johnson v. Pfister

United States District Court, N.D. Illinois, Eastern Division

May 9, 2017

RANDY PFISTER, Warden, Stateville Correctional Center, Respondent.



         Petitioner Antawan Johnson seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 [1]. For the reasons set forth below, the Court denies Petitioner's application [1]. The Court declines to certify any issue for appeal pursuant to 28 U.S.C. § 2253(c)(2), and directs the Clerk to enter judgment in favor of Respondent.

         I. Background

         A. State Court Proceedings

         1. Criminal Trial

         On May 27, 2005, a Cook County, Illinois jury found Petitioner guilty of first degree murder and unlawful discharge of a firearm for the June 2001 shooting death of Cortez Bell. On July 5, 2005, Petitioner was sentenced to an aggregate term of 50 years of imprisonment.

         Petitioner and co-defendant Naja Triplett were tried together. At trial, the State presented testimony from Airrion Smith and Jessie Knox-two witnesses who said they were “shooting dice” with Bell and others in Chicago Heights on June 16, 2001. According to Smith, Petitioner approached the group and offered to sell a .22 rifle and .22 shotgun for $100. When no one expressed interest, Petitioner borrowed $5 from Smith and joined the group to shoot dice. He won some money at first, but lost his winnings after moving down the block to a higher-stakes game. Shortly afterwards, Triplett approached Petitioner on a bicycle. Petitioner told Triplett that although he had lost his money, “[w]e on some bulls**t.” [20-2, at 9.] Triplett responded, “I want some bulls**t too.” Id. Petitioner informed Triplett that he had two guns in his backyard and the two men left. Id. About 45 minutes later, Smith and another player, Clifton Ross, left the game and walked across the street to an abandoned house, where they observed Petitioner and Triplett standing with “two long guns.” [20-3, at 6.] Smith testified that he saw Petitioner and Triplett aim their guns at the group playing dice and fire three or four shots. Smith and Ross fled, but Smith later returned and found Bell on the sidewalk bleeding.

         Knox's testimony largely corroborated Smith's testimony about Petitioner's request to borrow money, his loss of that money playing dice, the particulars of the conversation between Petitioner and Triplett, and their leaving together. On direct examination, Knox testified that he remained with the group shooting dice until he saw Smith and Ross running down the driveway of the abandoned house across the street. Knox then heard gun shots and ran around the corner until the shooting ceased. When he returned, he saw Bell lying on the ground bleeding. Knox was questioned by the police and later by the state's attorney, and gave testimony to the grand jury that was consistent with this version of events.

         On cross examination, Knox was confronted with an affidavit that he Dated: November 22, 2004-more than three years after the incident-stating that “On the night of June 16, 2001, [Triplett] and [Petitioner] tried to sell some guns to us, Money, Alonzo, Robert, Jessie, Clifton, and Cortez and Eric [Gill]. Eric convinced us to [r]ob them. We tried to and they came but everything went wrong and it resulted in the death of Cortez Bell.” [20-2, at 10.] The affidavit further stated that Knox did not tell the police about Triplett and Petitioner trying to sell guns because Knox did not want any further problems.

         On redirect, however, Knox explained that he completed the affidavit at the request of Petitioner's brother. Specifically, Petitioner's brother approached Knox with a blank affidavit and a piece of notebook paper with writing on it. At the brother's request, Knox transferred what was written on the notebook paper to the affidavit, signed it, and then was driven to a notary. Knox testified that he was not pressured to complete the affidavit, but he did not know anyone named Eric and no one named Eric was with him on the date of the shooting. Knox also reaffirmed that his grand jury testimony was correct and the information in the affidavit was not.

         The State also called Petitioner's 2001 girlfriend, Tina McKee, who testified about a conversation she had with Petitioner at her mother's house on the day after the shooting. At that meeting, Petitioner purportedly told her that someone had taken his money and that he and a friend had fired their guns, although they had not fired at anyone in particular. According to McKee, Petitioner said that he fired his gun first, then Triplett shot his gun, and “when they were done shooting, the boy [Bell] fell to the ground.” [20-1, at 4.] The State then confronted McKee with her prior statement to Assistant State's Attorney Alzetta Bozeman-Martin in which McKee said that the meeting with Petitioner had occurred on the day of the shooting (not after) at her aunt's home (not her mother's home). In that affidavit, she indicated that Petitioner told her, “I feel like killing these mother f**kers, ” and he and Triplett had gone to Triplett's grandmother's garage to retrieve a “long gun” and .22 caliber gun. McKee testified that she had lied to Bozeman-Martin (and the grand jury) when she gave this statement because she had been put in a jail cell and was told that she could return home only if she cooperated and signed this statement. McKee also denied receiving threatening letters from Petitioner following his arrest.

         The State also called Chicago Heights Detective Mikal El-Amin and ASA Bozeman-Martin about their interview with Petitioner on July 7, 2001, the day after his arrest. During that interview, Petitioner signed a statement confessing to shooting into the crowd of dice players. Specifically, Petitioner admitted that he, Triplett, and the other men playing dice were members of the Four Corner Hustlers street gang and there was an ongoing feud over territory. Four days prior to the shooting, in fact, Triplett had been beaten because was in the “wrong area.” [20-3, at 10.] For these reasons, he and Triplett left the area where the men were playing dice, went drinking, and then returned with two .22 caliber rifles and began shooting. Id. On cross-examination, Detective El-Amin admitted that he had destroyed his original notes from Petitioner's July 7 interview and from the other interviews that he had conducted with witnesses of the shooting. [1, at Ex. S, at MM-13-14.] He testified that he reduced these original notes to a summary report and then destroyed the originals pursuant to the practice of Chicago Heights Police Department. Id. at MM-13-14.

         Petitioner testified as the sole witness in his defense. He corroborated the broad contours of Smith and Knox's description of the initial events: he approached the group playing dice, asked to borrow money, lost his initial winnings after moving to a higher-stakes game, and offered to sell two .22 caliber rifles for $100. His description of later events diverges from the others. He testified that Smith requested that he get the guns and meet across the street. Petitioner then left to find Triplett, who owned the guns, and Triplett rode up on his bicycle. Petitioner said that he “got a sale for the guns, ” but Triplett did not believe him and accused Petitioner of being “on some bulls**t.” [1, at Ex. S, at MM-145.] Petitioner responded that he “wasn't in on any bulls**t, ” and in fact had a buyer. Id. The two then left and returned an hour or two later. When they arrived, a group of people led by Gill approached them and asked to see the guns and if they were loaded. Triplett removed a bullet from his gun to show Gill and asked him, “where the money at.” Id. at MM-150. Petitioner then heard a noise from behind and saw Smith and Ross running towards them. Gill tried to grab the gun out of Triplett's hand, the two men struggled, and Petitioner fired his gun telling everyone to “freeze.” Id. at MM-152. Triplett then placed the bullet back into the gun, shot into the crowd, and both men fled.

         Petitioner testified that he saw McKee at her mother's house a “couple of days” later, but denied saying he shot anyone or into the crowd. Id. at MM-154. He also testified that he told all of this to the police, but later decided to give them a different “story, ” not a “confession, ” once Detective El-Amin confronted him with Knox's statements. Id. at MM-158-59; [20-3, at 12]. According to Petitioner, a “confession” is true, while a “story” is not. [20-3, at 12.] On cross-examination, he admitted that he and Triplett had fired their guns. [1, at Ex. S, at MM-177.]

         At the jury instruction conference, the trial judge accepted the State's version of Illinois Pattern Instruction 3.11 for prior inconsistent statements. [See 20-14, at 63.] The pattern instruction distinguishes between statements used as impeachment and substantive evidence. The substantive evidence language in the instruction is bracketed, indicating that it is “alternative language” that may not be appropriate in all cases. Ill. Pattern Jury Instructions, Criminal No. 1 (4th Ed. 2000). The note accompanying this instruction states, in part, that “[w]hen both kinds of earlier inconsistent statements are used for [substantive and impeachment] purposes this instruction should be given in its entirety at the close of the trial.” Id. at No. 3.11 committee note. The instruction offered by the State contained the pattern instruction's concluding language stating that it is up to the jury “to determine what weight should be given to [the prior] statement” and the jury “should consider all of the circumstances under which it was made” in making that determination, but did not contain the language from the pattern instruction on how prior written or signed statements can be considered substantive evidence. [20-14, at 63.] Petitioner's trial counsel agreed to this instruction without objection. [See 1, at Ex. N, at NN-6.]

         Petitioner's counsel also offered instructions on the lesser-included offense of reckless discharge of a firearm and spoliation of evidence, both of which the trial judge denied. [1, at Ex. N, at NN-13-20.] The trial judge rejected a spoliation instruction based on Detective El-Amin's testimony about his notes, reasoning that the jury had heard his testimony and could draw their own conclusions. Id. at NN-13-15. Regarding the lesser-included offense instruction, the trial judge accepted the State's argument that even if the jury believed Petitioner's testimony that Triplett had fired his gun into the crowd, Petitioner would still be guilty under an “accountability” theory-that is, he would have been “legally responsible for the conduct of another person when, either before or during the commission of an offense, and with the intent to promote or facilitate the commission of an offense, he knowingly solicits, aids, abets, agrees to aid, or attempts to aid the other person in the planning or commission of the offense.” Ill. Pattern Jury Instructions, Criminal No. 5.3. Since this “accountability” instruction was accepted-over Petitioner's objection [1, at Ex. N, at NN-7-9]-the reckless discharge would not have been an appropriate lesser-included offense “based upon the totality of the evidence.” Id. at NN-18.

         Before closing arguments began, the trial court instructed the jury that “what the lawyers say is not evidence and should not be considered by you as evidence” and “the lawyers will simply be discussing what they believe the evidence has shown.” [1, at Ex. D, at NN-32.] Three of the State's arguments are relevant. First, the prosecutor stated twice that the “most powerful piece of evidence in a criminal trial is a confession”-an argument advanced in the context of explaining how Petitioner's post-arrest statements corroborated Smith's testimony. Id. at NN-44-46. Second, the prosecutor stated that if “[a]ny questions come in up in the jury room, turn to those jury instruction, that is your guide in this case to determine what is relevant and what is not. If it's not in the jury instructions, it's not relevant, don't consider it.” Id. at NN-46. Third, the prosecutor responded in rebuttal to Petitioner's argument that “[t]he most powerful piece of evidence in a criminal case is DNA” and “[y]ou don't have that.” Id. at NN-77. The State said,

Counsel made a big deal about DNA and that is the best kind of evidence and whatnot, that's true, there was no DNA found or recovered here. You want to know why? It's because * * * it's called a crime scene. You want to know why it's called a crime scene? Because it's controlled by the criminals. Th[ey] decide it. Like I started to tell you earlier, they decide what evidence is going to be left behind. They decide what witnesses they are going to be out there and that they're going to allow to see everything that happened. They decide. If there was no DNA recovered, that is because he and his partner didn't allow it. If there was no casings or anything recovered, that is because he and his criminal teammates didn't allow it. And the guns weren't recovered, that is because he and his criminal teammates didn't allow it. They control the crime scene.

Id. at NN-88-89. Petitioner's trial counsel did not object to any of these arguments.

         Following closings, the jury returned a guilty verdict against Petitioner. Petitioner filed a posttrial motion for a new trial advancing thirteen somewhat overlapping arguments: (1) the State failed to prove Petitioner guilty of the charges beyond a reasonable doubt, (2) the verdict was against the weight of the evidence, (3) Petitioner was denied due process of the law; (4) Petitioner was denied equal protection of the law; (5) the State failed to prove Petitioner guilty of every material allegation of the offense beyond a reasonable doubt; (6) Petitioner was denied a fair and impartial trial as guaranteed by the Illinois and United States Constitutions; (7) the court erroneously overruled Petitioner's motion for directed verdict; and (8) the verdict was based on evidentiary facts that do not exclude every reasonable hypothesis consistent with Petitioner's innocence; (9) the State erroneously shifted the burden of proof to Petitioner when it argued in closing that Petitioner chose the evidence; (10) the court erred in prohibiting an instruction for lesser-included offenses; (11) the court erred in the specific language of its accountability jury instruction; (12) the court erroneously allowed the State to reference Petitioner's alleged threats against McKee; and (13) the court erred in not providing a spoliation instruction to disregard Detective El-Amin's testimony. [1, at Ex. E.] The trial judge denied the motion and sentenced Petitioner to consecutive 30- and 20-year terms of imprisonment.

         2. Direct Appeal

         In the direct appeal of his conviction, Petitioner raised two arguments: (1) the jury was erroneously instructed on prior inconsistent statements, and (2) the three statements from the State's closing argument described above were improper. [20-2, at 6.] On April 19, 2007, the Illinois Appellate Court rejected both arguments and affirmed. [See 20-1.] First, the court concluded that Petitioner had forfeited the jury instruction issue by failing to object at trial or raise the issue in his posttrial motion. [See 20-1, at 6-7.] The court also considered and rejected Petitioner's argument that the trial court's instruction constituted plain error or his counsel's failure to object demonstrated ineffective assistance of counsel, focusing on the “overwhelming evidence” at trial of Petitioner's guilt. Id. at 7-9. Second, the Appellate Court found that Petitioner's counsel “waived” (or, more accurately, forfeited) challenges to the State's closing argument by failing to object at trial. Id. at 10. The court again reviewed this issue under plain error and for ineffective assistance of counsel, and concluded that these statements-to the extent improper-did not merit reversal in light of the State's entire closing argument and the “overwhelming” evidence against Petitioner. Id. at 10-14.

         On June 27, 2007, Petitioner filed a pro se petition for leave to appeal (“PLA”) with the Illinois Supreme Court that reurged both of his direct appeal arguments. [20-5.] The Illinois Supreme Court denied the PLA on September 26, 2007. People v. Johnson, 875 N.E.2d 1118 (Ill. Sept. 26, 2007). Petitioner then filed a petition for writ of certiorari to the United States Supreme Court, which was denied on June 22, 2008. Johnson v. Illinois, 552 U.S. 1169 (2008).

         3. Collateral Proceedings

         On April 2, 2008, Petitioner filed his initial pro se petition seeking relief under the Post-Conviction Hearing Act, 725 ILCS 5/122-1 et seq., and an amended petition on April 10. [20-23, at 25-35.] His amended petition asserted the following violations of his rights under the Illinois Constitution and the Sixth and Fourteenth Amendments to the United States Constitution: (1) the venire panel was not questioned about anti-gang bias; (2) the State's reliance on an “accountability” theory to prove murder impermissibly “broadened” the indictment; and (3) his trial and appellate counsel were ineffective for failing to raise these claims. Id. at 32-35. Petitioner was appointed counsel on May 16 [20-25, at 24-26], but he filed another pro se petition on July 22, repeating the arguments from his amended petition [1, at Ex. J, at 217-27].

         Around April 27, 2011, Petitioner indicated his desire to proceed pro se and filed a new petition. [20-25, at 24-72.] In addition to the anti-gang bias and accountability arguments from his 2008 petitions, Petitioner raised the following claims: (1) the trial judge abused his discretion by refusing to instruct the jury on the reckless discharge offense; (2) the State used hearsay evidence to impeach McKee; (3) the trial judge abused his discretion by denying the spoliation instruction; and (4) Petitioner's trial and appellate counsel were ineffective for failing to raise or properly argue these challenges. [20-23, at 45-100.] In May 2011, Petitioner elected to remain with his appointed counsel, who adopted his 2011 petition without changes. [20-25, at 73-82.]

         The State moved to dismiss Petitioner's amended petition on October 21, 2011. [1, at Ex. L, at 284-96.] The Circuit Court of Cook County ruled orally and granted the State's motion on March 9, 2012. [20-25, at 111-19.] With respect to the “accountability” arguments, the court held that “established case law” allows the State to indict a defendant as a principal and then proceed under a theory of accountability at trial. Id. at 113-14. Because there was no error, neither trial nor appellate counsel was ineffective for not raising these issues. Id. With respect to absence of gang-bias questions, the court considered this to be trial strategy and held that his counsel did not fall below an objective standard of reasonableness. Id. at 114. The court did not discuss Petitioner's other arguments specifically in his oral ruling, but concluded that “defendant has not therefore made a substantial showing of any constitutional violations.” Id. at 115.

         Petitioner appealed. [20-9.] First, he argued that his direct appellate counsel was ineffective for failing to seek review of the original trial judge's refusal to instruct the jury on lesser-included offenses and spoliation. Second, he argued that his post-conviction trial counsel was ineffective because she failed to advocate properly for him. Third, he argued that judge who heard his post-conviction claims “ignored many” of his allegations in his petition and the judge's “failure to read the amended petition” requires further proceedings. [20-9, at 53.]

         On September 4, 2014, the Illinois Appellate Court affirmed. See People v. Johnson, 2014 IL App (1st) 120750-U. Applying Illinois case law to Petitioner's version of the facts, the Appellate Court held that the trial court correctly denied the lesser-included offense instruction. Id. ¶¶ 23-38. Specifically, Triplett's discharge of his firearm at Gill and others as they attempted to rob Petitioner and Triplett was an act in furtherance of their common criminal design, which meant no rational trier of fact could have found Petitioner guilty of only reckless discharge and not murder based on an accountability theory. Id. The Appellate Court further held that the failure to provide a spoliation instruction was harmless, adopting the original Appellate Court's conclusion that “the State adduced overwhelming evidence of petitioner's guilt” and the outcome at trial would not have been different with this instruction. Id. ¶¶ 39-50. The court concluded that Petitioner's post-conviction trial counsel's advocacy was “absolutely correct and wholly appropriate.” Id. ¶¶ 51-55. And finally, the court rejected Petitioner's argument that the post- conviction trial court had not read his petition, noting that “the trial court did not need to discuss every claim” as part of its ruling when it denied his petition in full. Id. ¶¶ 56-60.

         On October 9, 2014, Petitioner filed a PLA with the Illinois Supreme Court, raising arguments related to the lesser-included offense and spoliation jury instructions only. [20-12.] The Illinois Supreme Court denied the PLA on November 26, 2014. People v. Johnson, 21 N.E.3d 716 (Ill. Nov. 26, 2015) (Table).

         B. ...

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