United States District Court, N.D. Illinois, Eastern Division
Kenneth D. Johnson, (M34606), Petitioner,
Kimberly Butler, Warden, Menard Correctional Center, Respondent.
MEMORANDUM OPINION AND ORDER
M. PACOLD, UNITED STATES DISTRICT JUDGE
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.
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
Johnson's Murder Conviction
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.
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.
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
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.
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.
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.
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".
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
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.
Johnson's Efforts to file a State Postconviction
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.
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."
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.
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.
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).
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.
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.
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
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).
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
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). 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).
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.)).
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).
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 ...