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Johnson v. Sullivan

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

November 6, 2019

Marlon Johnson (R-10133), Petitioner,
Daniel Sullivan, Respondent.



         Petitioner Marlon Johnson, a prisoner at the Big Muddy River Correctional Center, filed this pro se 28 U.S.C. § 2254 petition for a writ of habeas corpus to challenge his 2005 convictions for aggravated kidnapping and aggravated criminal sexual assault from Kane County, Illinois. (Dkt. 1.) For the reasons set forth below, the Court denies the § 2254 petition and declines to issue a certificate of appealability.


         At Petitioner's trial, M.G. (the complainant), through a Spanish-language interpreter, testified to the following. On December 17, 2003, she was returning home from her night shift at a factory. (Dkt. 17-2, pg. 30). At 6:15 a.m., she parked her car in a reserved outdoor spot in front of her apartment building in Aurora, Illinois. Her car had four doors and a gear shift between the driver and front passenger seat. (Id.) According to M.G., she opened her door about four inches, and before she was able to step out of the car, Petitioner grabbed the upper corner of the door, opened it, and asked for a ride. (Id.) M.G. testified that she had seen Petitioner for about two weeks standing in front of the apartment building at approximately the same time each morning. (Id.) Petitioner usually said “hi” or “good morning, ” and M.G. usually replied. She denied otherwise knowing him or his name. (Id.)

         M.G. testified that she refused Petitioner's request for a ride, telling him that she had to get home to her baby. (Dkt. 17-2, pg. 30.) According to M.G., Petitioner put a box-cutter knife to her neck, then pulled the knife away and jumped over her to the passenger seat. (Id. at 31.) M.G. testified that Petitioner held the knife at her waist and directed her to drive to a Jewel grocery store, where he commented that “it” or “he” was not there. (Id.)

         Petitioner then directed M.G. to continue driving. (Id.) After five or ten minutes, they parked in the parking lot of a factory. (Id.) Petitioner asked for money and M.G.'s purse. She said she had neither. (Id.) M.G. testified that Petitioner began looking through the car: lowering the sun visors and searching the glove compartment, center console area, and back seat. (Id.) After finding no money, Petitioner told M.G. to continue driving. (Id.) They drove to another parking lot on the same street where they again parked. M.G. testified that Petitioner took from his pocket photographs of naked women. (Id.) Petitioner allegedly told M.G. to look at the photos as he began taking off his pants. M.G. started to unbuckle her seatbelt, but Petitioner held the knife to her waist and directed her to refasten her seatbelt, which she did. (Id.) M.G. testified that Petitioner then placed the knife at her throat, pushed her head down, and forced her to perform oral sex. (Id. at 32.) Petitioner ejaculated. M.G. lifted her head and spat. (Id.) Petitioner then emptied a paper bag and used it to wipe his penis and anything on which he ejaculated. (Id.) M.G. testified that Petitioner had her drive back to the apartment building, where he exited the car, taking with him the paper bag and M.G.'s identification card. (Id.) Petitioner told M.G. that he was going to let her go. (Id.) Petitioner also warned M.G. that he knew where she lived and that, if she went to the police, something worse would happen to her. (Id.)

         Petitioner testified that, in December of 2003, he was a cocaine dealer living with his girlfriend and two children in an apartment complex near M.G.'s. (Dkt. 17-2, pg. 36.) He stated that he had met M.G. eight times before December 17, 2003. (Id.) Petitioner said he had met M.G. for first time in October 2003, when she bought drugs from Petitioner's friend. (Id.) At that time, Petitioner gave M.G. his phone number, and she later purchased drugs from him about six times. Petitioner stated that she said her name was Mimi when they first met. (Id.)

         Petitioner testified that, on December 16, 2003, he was at a friend's apartment in an apartment complex next to M.G.'s. (Dkt. 17-2, pg. 37.) The men were playing video games and drinking. (Id.) Petitioner fell asleep and awoke the next morning around 6 a.m., when he immediately headed home. (Id.) Petitioner stated at trial that M.G. pulled up next to or near Petitioner, waved him over to her car, and asked if he would “front” her drugs until she was paid. (Id.) Petitioner testified that he usually did not front drugs for customers and, instead, offered to give her drugs in exchange for oral sex. M.G. agreed and parked her car. (Id.) According to Petitioner, the two went to a laundry room in his apartment building, where he sat on a washing machine while she performed oral sex. Petitioner testified that M.G. went to the sink to spit while he was still climaxing, which is how her clothes became stained with his semen. (Id.) Petitioner then told M.G. that he would return with a $50 bag of cocaine. He instead, however, went back to his friend's apartment because he did not want to confront his girlfriend at that time. (Id.) According to Petitioner's trial testimony, he never got in M.G.'s car, never held a knife to her, and never forced her to engage in oral sex. (Id. at 38.)

         During closing statements, Petitioner's attorney argued that no physical evidence linked Petitioner to M.G.'s car: “Fingerprints. You didn't hear anything about fingerprints. Hairs. Nothing about hairs. This man handled these containers in the lunch box. No fingerprints, nothing.” (Dkt. 17-12, pg. 80.) During deliberations, the jury sent a note to the trial judge asking: “Can we take into account the car was impounded and fingerprint[s] were not found?” (Id. at 105.) The judge informed the jury: “You have before you the admissible evidence.” (Id.)

         The jury found Petitioner guilty of both aggravated kidnapping and aggravated sexual assault. He received consecutive sentences of 8.5 years of imprisonment for kidnapping and ten years for the sexual assault. (Dkt. 17-2, pg. 38.)

         In a pro se post-trial motion, Petitioner raised for the first time the question of whether fingerprint comparison testing had been performed. (Dkt. 17-13, pg. 9-14.) The prosecutor stated: “There were fingerprints obtained in the car, and when I contacted the lab for analysis, . . . they said once there's DNA, they don't really do fingerprints. It kind of stops. There is nothing conclusive about any of the fingerprints, and it was not really an issue.” (Id. at 10.) Petitioner's trial attorney (Ronald Dolak) stated: “as far as the discovery I had, there was no [fingerprint] comparison, and we argued the fact that the State omitted it, that there wasn't any evidence against Marlon Johnson. I believe we argued that in our closing arguments, and I think that's how we addressed it.” (Id. at 11.) The trial court denied Petitioner's post-trial motion.

         The court concluded that counsel's “decisions . . . could well be considered trial strategy, although that evidence wasn't even available, and quite frankly, it appears that Mr. Dolak was able to get the most mileage out of it anyway by argument with pointing out the fact that that evidence was not presented.” (Id. at 12-13.)

         Contrary to the prosecutor's and Petitioner's trial attorney's statements at the post-trial hearing, fingerprint comparisons had been done and two reports issued. According to an Aurora Police Evidence Technician's Report, M.G.'s car was taken to a police garage around 6:00 p.m. on December 17, 2003. (Dkt. 17-6, pg. 30.) Two fingerprints were lifted from the exterior of the driver's door, and three prints were lifted from the exterior of the passenger's door. (Id.) The technician was “unable to recover any latent prints from inside the vehicle” or from a plastic container found in the car. (Id.) On July 28, 2004, Illinois State Police Forensics Scientist Barbara Wilkins reported that the five latent prints from M.G.'s car were compared to inked prints from M.G., Adan Oliverio, and Olga Travezoe.[2] Those comparisons “did not reveal any identifications.” (Id. at 32.) Another analysis from April 14, 2005 compared the five prints from M.G.'s car to eleven inked prints from Petitioner. “Comparison of the suitable latent prints to the inked standards of Marlon Johnson did not reveal any identifications.” (Id. at 37.)

         Petitioner appealed. The fingerprint evidence issue was not raised on direct appeal. (Dkt. 17-1.)[3] His petition for leave to appeal (PLA) to the Illinois Supreme Court (which petition was denied) also did not address the fingerprint evidence. (Dkt. 17-3, 17-4).

         While his direct appeal was pending, Petitioner, proceeding pro se, filed a petition for post-conviction relief in the state trial court. He argued that trial counsel was ineffective: (1) for failing to introduce evidence that five fingerprints retrieved from M.G.'s car did not match Petitioner's fingerprints; and (2) for failing to interview the interpreter (who translated M.G.'s first account of the incident from Spanish to English) in an attempt to establish discrepancies between M.G.'s testimony and the officer's report. (Dkt. 17-4, pg. 2.)

         The trial court, noting that a post-conviction petition can proceed while a direct appeal is pending, appointed counsel for Petitioner. (Dkt. 17-5, p.1.) That attorney, stating the petition lacked merit, asked to withdraw, which the trial court granted. (Id. at 2, 6.) Eight months later, the trial court granted the State's motion to dismiss the petition. (Id. at 7.)

         With different counsel, Petitioner appealed. (Dkt. 17-5, pg. 8-75.) The state appellate court concluded that Petitioner's ineffective assistance claims had potential merit and that post-conviction counsel should not have been allowed to withdraw. (Dkt. 17-6, pg. 21-22.) The court reversed the dismissal of the post-conviction petition and remanded for further proceedings. (Id.)

         On remand, Petitioner's re-appointed attorney filed an amended post-conviction petition. (Dkt. 17-6, pg. 23.) The amended petition argued: (1) trial counsel was ineffective for: (a) failing to call the forensic expert who conducted the fingerprint comparisons, and (b) failing to interview the person who translated M.G.'s initial account of the incident; (2) appellate counsel was ineffective for failing to raise ineffective assistance of trial counsel on appeal; and (3) a Brady violation occurred when the prosecutor falsely stated to the trial court and Petitioner's trial attorney that, while fingerprints were taken from the car, no comparison analysis was conducted. (Dkt. 17-6, pg. 27-29; Dkt. 17-7, pg. 1-2.) The trial court granted the State's motion to dismiss Petitioner's amended post-conviction petition. (Dkt. 17-7, p.3.)

         Petitioner appealed, asserting one issue for review: “that trial counsel was ineffective for failing to obtain and present to the jury evidence that five fingerprints suitable for comparison were found on the complainant's car and that none of the prints matched the defendant's, who maintained that he had never been in the car.” (Dkt. 17-7, pg. 8.) The state appellate court affirmed the dismissal of Petitioner's amended post-conviction petition. (Dkt. 17-8, pg. 14-17.) The court determined that, though Petitioner could establish that his trial attorney's performance was deficient, he could not establish that he was prejudiced. (Id. at 16-17.) Observing that the five fingerprints recovered from M.G.'s car matched none of the samples taken (including those from M.G. and two other people who had been in M.G.'s car), the state court concluded that the fingerprint evidence was not very strong. (Id.) According to the state appellate court, Petitioner's trial counsel's closing statement (that the State introduced no fingerprint evidence when it should have) was “more persuasive” than the fingerprint evidence itself. (Id. at 17.)

         Petitioner sought leave to appeal from the Illinois Supreme Court, again asserting his claim that trial counsel's failure to present the fingerprint evidence constituted ineffective assistance of trial counsel and that the appellate court's determination of no prejudice was incorrect. (Dkt. 17-8, pg. 19.) The Illinois Supreme Court, without explanation, denied the petition for leave to amend. (Dkt. 17-9, pg.1.)


         Petitioner's 28 U.S.C. § 2254 petition asserts three claims: (1) the prosecutor violated Brady v. Maryland, 373 U.S. 83 (1963) when she told the trial court and Petitioner's attorney at the post-trial hearing that, though fingerprints were collected from M.G.'s car, the lab stopped doing comparison analysis once it learned DNA evidence existed; (2) the prosecutor and Petitioner's first two defense attorneys (Brenda Willett and David Kliment), who had the fingerprint reports in Petitioner's discovery materials, conspired to keep the reports from Petitioner by not providing them to Ronald Dolak, his trial attorney; and (3) Attorney Dolak was ineffective for ...

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