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Johnson v. Butler

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

October 2, 2019

Kenneth D. Johnson, (M34606), Petitioner,
v.
Kimberly Butler, Warden, Menard Correctional Center, Respondent.

          MEMORANDUM OPINION AND ORDER

          MARTHA M. PACOLD, UNITED STATES DISTRICT JUDGE

         Petitioner Kenneth D. Johnson, a prisoner incarcerated at the Stateville Correctional Center, brings this pro se amended habeas corpus action pursuant to 28 U.S.C. § 2254 challenging his 2011 double murder conviction from the Circuit Court of Cook County. For the reasons set forth below, the Court denies the petition on the merits, and declines to issue a certificate of appealability.

         I. Background

         The Court draws the following factual history from the state court record. (Dkt. 25.) State court factual findings are presumed correct, and Johnson has the burden of rebutting the presumption by clear and convincing evidence. Brumfield v. Cain, 135 S.Ct. 2269, 2282 n.8 (2015) (citing 28 U.S.C. § 2254(e)(1)). Johnson has not made such a showing.

         A. Johnson's Murder Conviction

         Following a jury trial, Johnson was found guilty of shooting two men at a carwash in Chicago's South Austin neighborhood. Illinois v. Johnson, 2014 IL App (1st) 132036-U, 2014 WL 4243315, at *1 (Ill.App.Ct. 2014). The shootings occurred on February 13, 2009, around 8:00 p.m. A number of people were present in the carwash and surrounding area on the street. Several eyewitnesses identified Johnson as the shooter during his trial.

         The eyewitnesses testified to four additional relevant points. First, the eyewitnesses gave varying heights for the shooter of 5'7", 5'8", 5"11' and 6'2", Second, the shooter walked with a limp. Third, the shooter was observed standing on the hood of a car inside the carwash shooting at one of the victims, (and police investigators recovered a footprint via the use of gel lifts from the hood of the car). Fourth, the shooter was seen fleeing the scene in a green Buick Regal. A witness reported the license plate number of the getaway car to the police and police discovered that the car was registered to Johnson. The police later located the car on March 27, 2009, a month and half after the shooting. The car's interior was burned from the inside out, and the license plates were removed, however, the car's VIN number remained intact in the vehicle allowing its identification.

         Johnson was arrested on March 17, 2009, at his son's home. The police also seized three pairs of Timberland brand boots during the arrest. An Illinois State Police Crime Lab forensic scientist compared the boots to the footprint recovered from the hood of the car. The boots, which ranged in sizes from nine to nine and a half, were consistent in pattern, design, and size to the shoe print recovered at the crime scene. The forensic scientist, however, could not definitively link the seized Timberland boots to the recovered print because the quality of the gel print was poor. Id.

         Johnson testified on his own behalf at trial. He explained he was shot, two and a half months before the car wash shooting, on December 1, 2008, while driving his car with his daughter, He did not know who shot him in December 2008, did not know either of the car wash shooting victims from February 2009, and had no reason to suspect that they were involved with his shooting. He further explained he was only 5'4" tall and wore size seven and a half shoes. Id.

         Although Johnson was shot while driving the green Buick Regal back on December 1, 2008, he explained he no longer used it at the time of the second shooting, instead allowing his cousin, Ted Brown, to drive it. The car was sold sometime between the car wash shooting on February 13, 2009, and his arrest on March 17, 2009, but Johnson denied personally selling the car.

         Johnson further explained that he could not jog or run with a limp following his shooting in December 2008. This was relevant because some of the eyewitnesses who identified Johnson as the shooter said they saw him jogging during the February 13th shootings. An orthopedic surgeon testified as an expert on Johnson's behalf regarding his medical condition. The expert reviewed Johnson's medical records and explained that Johnson was struck in the abdomen and hip during his December 2008 shooting. The expert opined that Johnson would be unable to jog with his injuries and would likely have walked with a significant abnormality in his gait if he tried to move at a fast rate. Id.

         Johnson's mother testified on his behalf She saw him multiple times a week in January and February 2009 and explained that Johnson always used crutches to walk during that period while he was recovering from his December 2008 gunshot injuries. Johnson's mother confirmed that Johnson did not drive his car following the December 2008 shooting, and that Johnson's cousin drove the car when Johnson was not using it. The mother added that Johnson stood only 5'4" tall, but that Johnson's 27-year-old son, was between 5'7" and 5'8".

         Johnson provided two alibi witnesses. The first, Michael McGee, testified that Johnson was with him between 11:00 a.m. and 8:30 p.m. on February 13, 2009, when the murders occurred. Additionally, Johnson's brother testified that Johnson was with him from 8:30 p.m. until 9:00 p.m. that evening. Both men testified that Johnson was not near the car wash that day.

         The jury found Johnson guilty of two counts of murder and the trial court sentenced him to a mandatory term of life imprisonment. The Illinois Appellate Court affirmed Johnson's conviction on direct appeal.

         B. Johnson's Efforts to file a State Postconviction Petition.

         Johnson initiated the present habeas corpus proceeding following the completion of his direct appeal. He also sought to stay these proceedings so that he could bring a state postconviction petition. Johnson's stay motion asserted that he had hired attorney Charles K. Piet to represent him in the postconviction matter. The Court granted the stay request and instructed the parties to file regular status reports on the pending postconviction proceedings.

         On February 3, 2017, approximately three months after this case was stayed, Respondent's counsel, an assistant attorney general from the Office of the Illinois Attorney General, filed a status report explaining that the Circuit Court of Cook County had no record of a postconviction petition filed by Johnson. Three weeks later, on February 24, 2017, Respondent's counsel filed a follow up status report stating she spoke to Mr. Piet via the telephone that day. According to the status report, Mr. Piet related to Respondent's counsel that he (Piet) "had been hired by Johnson's family to review Johnson's case, [but that] he was never retained to file a postconviction petition on Johnson's behalf and did not do so."

         The Court entered a minute order on February 24, 2017, ordering Johnson (who was pro se in this Court) to file a written status report detailing the status of his postconviction petition proceedings. The Court's order warned Johnson that failure to comply with its order would result in dismissal of the case. The Court also set the case for status on March 30, 2017.

         Johnson did not file a status report prior to the March 30th status hearing, but he did file an amended habeas corpus petition. At the March 30th status hearing, the Court ordered the stay lifted and Respondent to answer or otherwise respond to the habeas corpus petition.

         Several weeks later, on April 25, 2017, Johnson filed a response regarding Respondent's representations in the February 24th status report as to Attorney Piet. Johnson explained that this was a "complete surprise," as "Petitioner's family paid counsel [Piet] initial attorney fees to represent Petitioner in the postconviction proceedings. ..." Further, Johnson explained he previously wrote to Piet out of concern of the statute of limitations governing state postconviction petitions, 725 ILCS § 5/122-1(c).

         Johnson also submitted a letter dated May 27, 2016, from Piet to Johnson written in response to a prior letter from Johnson to Piet. (Dkt. 23, pg. 4.) Piet addressed Johnson's questions regarding the statute of limitations for a postconviction petition, and also whether Piet believed Johnson had a valid ineffective assistance of counsel claim. Id. Piet further raised a lack of cooperation from Johnson's family regarding Piet's payment for Petitioner's representation, and providing promised eyewitnesses regarding the case. Id. In the closing of his letter to Johnson, Piet stated, "I am frustrated by the lack of cooperation I have received from your family. Despite their assurances, they have not contacted me either with respect to financial arrangements, nor, more importantly, with the information that they promised. Until I receive their complete cooperation, my hands are tied." Id. Johnson would later inform the Court that he had a new private attorney, Mr. Dean Morask, representing him in matters before the state court. (Dkt. 30.) Johnson has never provided any information suggesting that he ever filed a postconviction petition in state court.

         II. Analysis

         The amended habeas corpus petition alleges: (1) ineffective assistance of trial counsel regarding counsel's closing argument; (Dkt. 19, pgs. 5, 8-9.) (2) ineffective assistance of trial counsel for failing to call expert witnesses regarding his height and shoe size, and failing to challenge the prosecution's expert; id. at 5, 10-11, (3) prosecutorial misconduct through misstatement of evidence, improper attacks on Johnson's character, and improper and inflammatory remarks; id, at 6, (4) ineffective assistance of trial counsel for failing to consult an expert in preparation of Johnson's defense; id. at 6, 12-15; (5) ineffective assistance of trial counsel for failing to obtain an expert regarding Johnson's height; id. at 6, 15-19; (6) ineffective assistance of trial counsel for failing to investigate a Fourth Amendment challenge to the search of Johnson's son's home resulting in the seizure of the boots introduced at Johnson's trial; id. at 19-24; (7) ineffective assistance of trial counsel for failing to investigate the crime scene; id. at 25-26; (8) ineffective assistance of appellate counsel for failure to raise trial counsel's ineffectiveness regarding the prosecution's witness Lernard Williams; id. at 27-29; (9) ineffective assistance of appellate counsel for failing to assert trial counsel's ineffectiveness for failing to challenge prosecutorial misconduct during closing arguments; id. at 29-31; and, (10) ineffective assistance of appellate counsel for failing to raise trial counsel's failure to challenge the prosecutor's conduct during closing arguments. Id. at 31.

         Although Johnson alleges multiple instances of ineffective assistance of counsel, technically, ineffective assistance of counsel is a single claim. Pole v. Randolph, 570 F.3d 922, 934 (7th Cir. 2009) (citing Peoples v. United States, 403 F.3d 844, 848 (7th Cir. 2005)). But, Johnson must raise the factual basis for each aspect of the alleged ineffective assistance of counsel to preserve the respective argument. Pole, 570 F.3d at 935 (citing Stevens v. McBride, 489 F.3d 883, 894 (7th Cir. 2007)). Thus, the Court shall consider each ineffective assistance of counsel argument individually.

         However, before turning to the individual arguments, the Court recognizes that the state appellate court considered both Johnson's individual ineffective assistance of trial counsel arguments, and also evaluated defense counsel's performance at trial as a whole. See Pole, 570 F.3d at 934 (quoting Peoples, 403 F.3d at 848) ("We assess counsel's work as a whole, and 'it is the overall deficient performance, rather than a specific failing, that constitutes the ground for relief.'"). The appellate court stated,

Overall, based on our review of the record, counsel's actions in this case were not deficient. Counsel presented a coherent opening statement and closing argument, thoroughly cross-examined the State's witnesses, which included highlighting the factual inconsistencies in the eyewitnesses' testimony, put on an alibi defense with several witnesses, and offered an expert medical witness to argue that defendant physically was incapable of doing some of the things the witnesses observed. Consequently, defendant has failed to show that his counsel was ineffective.

Johnson, 2014 IL App (1st) 132036-U, 2014 WL 4243315, at *4. Upon a review of the record, the Court concludes that the state court's evaluations of counsel's performance as a whole was neither contrary to, nor an unreasonable application of, Strickland v. Washington, 466 U.S. 668 (1984).

         A. Argument One

         Johnson alleges ineffective assistance of trial counsel during closing arguments. He asserts that counsel failed to point out inconsistencies in the evidence regarding his height and shoe size. Johnson testified he was only 5'4" tall when the eyewitnesses accounts identified the shooter at heights of 5'7", 5'8", 5"ll', and 6'2". Furthermore, Johnson said his shoe size is seven and one-half inches when the shoeprint recovered at the shooting matched to size nine and nine and one-half boots. Johnson believes trial counsel should have emphasized these inconsistencies during closing arguments to demonstrate reasonable doubt.

         Johnson's argument was adjudicated by the state appellate court on direct appeal resulting in it being covered by the requirements of the Antiterrorism and Effective Death Penalty Act (AEDPA).[1] Muth v. Frank, 412 F.3d 808, 814 (7th Cir. 2005). A writ of habeas corpus cannot issue unless Johnson demonstrates that he is in custody in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2254(a). Under the AEDPA, the Court may not grant habeas relief unless the state court's decision on the merits was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States, or the state court decision is based on an unreasonable determination of facts. 28 U.S.C. § 2254(d).

         '"A federal habeas court may issue the writ under the 'contrary to' clause if the state court applies a rule different from the governing law set forth in [the Supreme Court's] cases, or if it decides a case differently than [the Supreme Court has] done on a set of materially indistinguishable facts.'" Premo v. Moore, 562 U.S. 115, 128 (2011) (quoting Bell v. Cone, 535 U.S. 685, 694 (2002)). "An 'unreasonable application' occurs when a state court 'identifies the correct legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of Johnson's case, '" Rompilla v. Beard, 545 U.S. 374, 380 (2005) (quoting Wiggins v. Smith, 539 U.S. 510, 520 (2003); Williams v. Taylor, 529 U.S. 362, 413 (2000) (opinion of O'Connor, J.)).

         Clearly established federal law is the '"holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of the time of the relevant state-court decision.'" Carey v. Musladin, 549 U.S. 70, 74 (2006) (quoting Williams, 529 U.S. at 412). The state court is not required to cite to, or even be aware of, the controlling Supreme Court standard, as long as the state court does not contradict the Supreme Court's case law. Early v. Packer, 537 U.S. 3, 8 (2002). The Court begins with a presumption that state courts both know and follow the law. Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (citations omitted).

         The Court's analysis is "backward looking." Cullen v. Pinholsier,563 U.S. 170, 182 (2011). The Court is limited to reviewing the record before the state court at the time that court made its decision. Id. The Court is also limited in considering the Supreme Court's "precedents as of 'the time the state court renders its decision.'" Greene v. Fisher,565 U.S. 34, 38 (2011) (quoting Cul ...


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