Opinion
Case Number 98 C 2937.
November 29, 2000.
MEMORANDUM OPINION AND ORDER
Petitioner Donald Johnson's habeas corpus petition challenges his state court burglary conviction and 18-year prison sentence. As explained below, two of Petitioner's habeas claims are procedurally defaulted. In addition, Petitioner's non-defaulted claims do not justify his release under 28 U.S.C. § 2254. As such, the habeas corpus petition is denied.
LEGAL STANDARDS
Prisoners seeking release from custody under state court judgments must clear significant procedural and substantive hurdles in order to achieve the requested relief. Under 28 U.S.C. § 2254(d), a federal court may not grant a prisoner's habeas corpus petition unless the state court's "adjudication of the claim" either "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or "resulted in a decision that 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. Before reviewing the state court's decision, however, this court must determine whether the § 2254 petitioner fairly presented any federal claims in state court first. Bocian v. Godinez, 101 F.3d 465, 468 (7th Cir. 1996). Any claim not asserted first in state court is deemed procedurally defaulted, id., and "a federal court may not grant habeas relief unless the petitioner `can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.'" Anderson v. Cowen, 227 F.3d 893, 899 (7th Cir. 2000) (quoting Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991)). In addition, a state prisoner seeking federal habeas corpus relief must exhaust the remedies available in the courts of the State. 28 U.S.C. § 2254(b)(1)(A). When considering the § 2254 petition, this court will presume that any state court factual determinations are correct unless the petitioner rebuts the presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
PROCEDURAL HISTORY
On September 12, 1995, a jury convicted Petitioner of burglary, and the Circuit Court of Cook County, Illinois sentenced him to 18 years in prison. Petitioner appealed his conviction "contend[ing that] the evidence was insufficient to support his conviction, it was improper for the trial court to impose the enhanced sentence without notice to him and his sentence was generally excessive." Illinois v. Johnson, No. 95 CR 13219, at 1 (Ill.App.Ct. Mar. 31, 1997). The Illinois Appellate Court affirmed Petitioner's conviction on March 31, 1997, and the Illinois Supreme Court denied Petitioner's petition for leave to appeal on October 1, 1997. In addition to appealing his conviction, Petitioner filed a pro se post-conviction petition, asserting nine grounds for relief. The circuit court summarily denied the post-conviction petition, and the Illinois Appellate Court affirmed the circuit court's denial on December 3, 1997. The Illinois Supreme Court denied Petitioner's petition for leave to appeal the appellate court's December 3, 1997 ruling on April 1, 1998. Petitioner filed his § 2254 petition for writ of habeas corpus in this court on May 11, 1998.
The nine grounds raised in Petitioner's post-conviction relief petition are:
(1) ineffective assistance of counsel for failing to obtain a shoe print expert,
(2) denial of due process by the ineffectiveness of his trial counsel in failing to obtain an expert witnesses,
(3) ineffective assistance of counsel for failing to properly cross-examine the state's expert witness,
(4) ineffective assistance of counsel for failing to move to quash Petitioner's arrest and to suppress evidence,
(5) denial of due process of law because a detective "willfully and intentionally misled and misrepresented the facts and circumstances of the case to the assistant states [sic] attorney involved," Pet. for Post Conviction Relief at 4,
(6) denial of due process because "[t]he arresting officer['s] . . . bad faith vitiated the finding of probable case," id.,
(7) denial of due process "when the prosecutor used false and . . . [perjured] testimony," id. at 5,
(8) denial of due process because "[t]he assistant states [sic] attorney at trial let false and . . . [perjured] testimony go uncorrected," id., and
(9) ineffective assistance of counsel for failing to bring to the court's attention that neither the evidence technician nor the detective spoke with Petitioner, that Petitioner never told the detective that he found stolen merchandise in an alley, that Petitioner's burglary charge was based on facts the detective misrepresented to the assistant state's attorney, and for failing to tender a jury instruction with a lesser included offense.
DISCUSSION
Petitioner raises the following claims in his habeas petition: (1) the prosecution failed to prove beyond a reasonable doubt that Petitioner committed burglary, (2) the state withheld crucial exculpatory evidence, (3) the prosecution knowingly put on false testimony, and (4) Petitioner's trial counsel was ineffective in that he (a) failed to call a shoe print expert, (b) failed to bring to the trial court's attention that the prosecution knowingly put on false testimony, and (c) failed to tender to the jury an instruction on a lesser included offense. Respondent concedes that Petitioner has exhausted his state court remedies, but asserts that Petitioner failed to raise in state court both the ineffective assistance of counsel based on the failure to give a jury instruction on a lesser included offense and the prosecutor's withholding of exculpatory evidence.
A. Procedural Default
1. ineffective assistance of counsel: failure to tender jury instruction
Petitioner raised his jury instruction claim for the first time in his petition for post-conviction relief. In People v. Coleman, the Illinois Supreme Court explained "that the scope of post-conviction review is limited to constitutional matters which have not been, and could not have been, previously adjudicated." 168 Ill.2d 509, 522, 660 N.E.2d 919, 927, 214 Ill. Dec. 212, 220, cert. denied, Coleman v. Illinois, 519 U.S. 827, 117 S.Ct. 91, 136 L.Ed.2d 47 (1996). When a petitioner asserts that the failure to raise a claim on direct appeal stems from his appellate counsel's ineffectiveness, however, that omitted claim may be raised for the first time in a post-conviction petition. Id. Petitioner argued in his post-conviction petition that his trial counsel, but not his appellate counsel, was ineffective. Only in his petition for leave to appeal the denial of his petition for post-conviction relief did Petitioner first claim that his appellate counsel was ineffective for failing to raise this issue. In addition, Petitioner has not argued, nor shown, any cause for this default, prejudice as a result, or that failure to consider the claim will result in a fundamental miscarriage of justice.
Further, petitioner's claim would fail even if this court were to reach its merits. To prevail on an ineffective assistance of counsel claim, Petitioner must meet the stringent two-pronged test enunciated by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 5. Ct. 2052, 80 L.Ed.2d 674 (1984). Under the Strickland test, Petitioner must show: "(1) that counsel's performance was deficient; and (2) that the deficient performance prejudiced the defense." Kubat v. Thieret, 867 F.2d 351, 359 (7th Cir. 1989). See also Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 1511-12, 146 L.Ed.2d 389 (2000); Porter v. Gramley, 112 F.3d 1308, 1312 (7th Cir. 1997); Kavanagh v. Berge, 73 F.3d 733, 735 (7th Cir. 1996). With regard to the first prong, this court "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable assistance." Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. As for the second prong, Petitioner "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id., 466 U.S. at 694, 104 S.Ct. at 2068. If the court finds that Petitioner fails to meet one prong, it need not consider the other. See Brumley v. DeTella, 83 F.3d 856, 861 (7th Cir. 1996) ("a habeas court may focus on either prong of this test, as the efficient dispatch of judicial business dictates").
The decision of whether to offer a jury an instruction on a lesser included offense "is within the realm of trial strategy, an area in which Monday morning quarterbacking is discouraged." Webster v. DeTella, 965 F. Supp. 1124, 1132 (N.D. Ill. 1997). Here, Petitioner's counsel may have had very good reason to avoid tendering the theft instruction. Petitioner's counsel argued at trial that he was "basically in the wrong place at the wrong time." (Trial Tr. at A-1333.) That, in fact, Petitioner had been "drinking earlier that night . . . and tried to urinate in the place at the wrong time." (Id.) If Petitioner's defense was that he was simply found at the scene of the crime, then it would have been inconsistent for his counsel to have asked for the theft instruction. Petitioner's counsel's conduct, therefore, falls within the wide range of reasonable assistance and cannot be considered deficient as defined by the Supreme Court in Strickland.
2. denial of due process: withholding crucial exculpatory evidence
Petitioner's argument that he was denied due process because the state withheld crucial exculpatory evidence was never raised in the state court proceedings. Petitioner's appellate brief mentions the tool bag on two separate occasions, but there is no argument that the state suppressed evidence of the tool bag's existence. Petitioner argues here that his "conviction was obtained by the state through the suppression of evidence favorable to him[,] namely [a] . . . picture of [a] tool bag taken at the point of entry," Habeas Pet. at 6, and raises his counsel's ineffectiveness to excuse the absence of this argument in the state court proceedings and avoid procedural default.
Petitioner appears to base this claim on the fact that his trial counsel complained to the trial court that he first became aware of the tool bag's existence after jury selection for Petitioner's trial. Before trial, however, Petitioner's counsel reported to the court, "I have had an opportunity to speak with Officer Hart, Judge [about the tool bag]. And I received the answers that I need." (Trial Tr. at A-120.)
Instead, the appellate brief first notes that "the Evidence Technician . . . took pictures of a tool bag and tried to obtain prints off it but there were none that he could see. The pictures of the tool bag were not exhibited because they were adjudged not to be related to the offense in issue." (Petitioner's App. Br. at 9 (citations to the record omitted).) The Petitioner later states in the appellate brief:
It is also worth remembering that an actual tool bag was discovered on the premises by the police. Upon examination and testing, however, it did not reveal Mr. Johnson's fingerprints. And, while the tool bag was ignored by the State as inconsequential to the case, it certainly suggests that some other person(s) may have been on the building premises other than Mr. Johnson and that the person(s) may have been responsible for throwing the boxes of defective merchandise on the ground.
(Petitioner's App. Br. at 16 (citations to the record omitted).)
Petitioner states that he "attempted to file a supplemental brief with the appellate court," "wrote appellate counsel to request that he, under no circumstances, waive[s] any of his constitutional rights," and raised this claim when he "made a motion in the appellate court pro se." (Petitioner's Reply at 3-4.) In support, Petitioner attaches what appears to be a ten-page letter to his appellate counsel in which he states "[t]ake note about a tool bag page A-226," one time, without any further explanation. In addition, Petitioner attaches a motion for new trial in which the issue was raised, but there is no court marking of any kind (i.e., a "filed" or "received" stamp) or any other indication that this motion was filed in the Illinois Appellate Court. Petitioner also asks this court to take note of a March 12, 1997 Illinois Appellate Court order stating, in full, "On motion of appellant, pro se for a new trial, the Public Defender representing appellant and briefs having been filed. It is hereby Ordered that the pro se motion for a new trial is not considered."
In order to fairly present a claim to the state court and avoid procedural default, "both the operative facts and the controlling legal principles of a constitutional claim must be submitted to the state court." Bocian, 101 F.3d at 468. As stated above, there is no indication that Petitioner's suppression of evidence claim was presented in any form to the state court. With regard to whether Petitioner can show cause and prejudice, the Supreme Court in Edwards v. Carpenter, 529 U.S. 446, 120 S.Ct. 1587, 146 L.Ed.2d 518 (2000), recently addressed the issue of when a claim of ineffective assistance of counsel will constitute cause to excuse a procedurally defaulted claim. In Edwards, the Supreme Court held that "an ineffective-assistance-of-counsel claim asserted as cause for the procedural default of another claim can itself be procedurally defaulted." 120 S.Ct. at 1592. And in this case, it appears that Petitioner has procedurally defaulted any claim for ineffective assistance of counsel based on his appellate counsel's failure to raise the tool bag issue. Petitioner offers no excuse for failing to bring this claim before the state court. In addition, Petitioner has failed to show that refusal to consider this claim would result in a fundamental miscarriage of justice. The narrow fundamental miscarriage of justice exception requires a showing that "in light of the new evidence, no juror, acting reasonably, would have found him guilty beyond a reasonable doubt." Schlup v. Delo, 513 U.S. 298, 329, 115 S.Ct. 851, 868, 130 L.Ed.2d 808 (1995). Petitioner has not made this showing. In fact, Petitioner's counsel elicited testimony from a police officer at trial that a tool bag was found at the crime scene and that no finger prints were found on the bag. The jury, therefore, convicted Petitioner of the charged offense after having considered this evidence.
B. Failure to Prove Guilt Beyond a Reasonable Doubt
Petitioner argues that "[t]he crucial evidence presented against . . . [him] was anecdotal, inconsistent and, in many respects, incredible. . ." (Habeas Pet. at 6.) This court must determine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 s. Ct. 2781, 2789 (1979); Ford v. Ahitow, 104 F.3d 926, 937 (7th Cir. 1997); Milone v. Camp, 22 F.3d 693, 703 (7th Cir. 1994). In addition, "the responsibility for resolving conflicts in the testimony, for weighing the evidence and for drawing reasonable inferences from basic facts to ultimate facts, is . . . the domain of th[e] trier of fact." Ford, 104 F.3d at 937 (citing Jackson, 443 U.S. at 319, 99 S.Ct. at 2789).
According to the Illinois Appellate Court:
[P]olice arrived at the warehouse seconds after receiving the broadcast of a burglary in progress. Defendant was stacking office equipment taken from the warehouse and also had other items under his coat. He was standing near a board that was under the broken window which was the point of entry for the burglary. Defendant wore gym shoes with a distinctive sole, the prints from which were found on top of a file cabinet inside the warehouse. Defendant lacked authority to enter or possess merchandise stored there. The evidence presented by the State was clear and unequivocal. Under the circumstances, a rational trier of fact viewing the evidence in the light most favorable to the State could conclude that the evidence was sufficient to prove defendant's guilt beyond a reasonable doubt.Illinois v. Johnson, No. 95 CR 13219, at 3-4 (Ill.App.Ct. Mar. 31, 1997). Petitioner claims that because no tools or other equipment that could have been used to climb into the premises were found in his possession at the crime scene, the exact shoe size of the shoe print found on the file cabinet was never determined, and a tool bag was found at the crime scene, the state failed to prove his guilt beyond a reasonable doubt. Petitioner has not shown that the state court's decision involved an unreasonable application of Supreme Court precedent regarding sufficiency of evidence. See 28 U.S.C. § 2254(d)(1). A reasonable determination "is at least minimally consistent with the facts and circumstances of the case." Hennon v. Cooper, 109 F.3d 330, 335 (7th Cir. 1997). The Illinois Appellate Court applied a standard of review identical to the standard stated in Jackson and, notwithstanding Petitioner's argument, the state court's application was completely reasonable. Hence, the court rejects this claim for relief.
C. Use of False and Perjured Testimony
Only the knowing and intentional use of perjured testimony rises to the level of a constitutional violation of due process. Shore v. Warden, 942 F.2d 1117, 1122 (7th Cir. 1991). See also Reddick v. Haws, 120 F.3d 714, 718 (7th Cit. 1997). Petitioner must not only establish that the prosecution's case included testimony of which the prosecution knew or should have known was perjured, but also that "there is a likelihood that the false testimony affected the judgment of the jury." United States v. Saadeh, 61 F.3d 510, 523 (7th Cir. 1995). The Seventh Circuit "ha[s] repeatedly held . . . that `[m]ere inconsistencies in testimony by government witnesses do not establish the government's knowing use of false testimony.'" Id. (quoting United States v. Verser, 916 F.2d 1268, 1271 (7th Cir. 1990). Petitioner hinges his argument on the fact that an Officer Via testified that an Officer Hart, the evidence technician in the case, gave him Petitioner's shoes. Officer Hart, on the other hand, testified that he never saw Petitioner's shoes. Petitioner's argument relies on testimony that, at most, is merely inconsistent. In addition, Petitioner does not deny that his gym shoes bore a distinctive pattern on the sole and that the shoe print found at the crime scene also bore this distinctive pattern. Hence, even if the conflicting testimony amounted to perjury, there would not exist a likelihood that it affected the jury. Finally, Petitioner provides absolutely no support for the proposition that the prosecution knew or should have known of the allegedly perjured testimony. For all these reasons, the court rejects Petitioner's claim that he is entitled to habeas relief due to the prosecution using perjured testimony.
Because Petitioner failed to establish this claim, the court will not address Petitioner's ineffective assistance of counsel claim based on the fact that his trial counsel failed to bring the alleged perjured testimony to the trial court's attention.
D. Ineffective Assistance of Counsel: failure to call shoe print expert
The court also rejects Petitioner's argument that his counsel was ineffective for failing to obtain a shoe print expert. First, although Petitioner repeatedly states that his counsel's failure to obtain a shoe print expert prevented him from presenting evidence at trial that would have established his innocence, he offers no support for this assertion. Further, such argument, even if provided, would be speculative at best. Second, there was sufficient evidence, aside from the shoe print, to convict Petitioner of burglary. Petitioner was found at the crime scene, under a broken window, stacking stolen office equipment. Stolen equipment was also found under Petitioner's coat. Hence, even if an expert testifying on Petitioner's behalf contradicted the state's expert's testimony that Petitioner's shoe matched the shoe print taken from the top of the file cabinet, Petitioner has not shown that there is a reasonable probability that a jury would have found him not guilty.
CONCLUSION
For the above-stated reasons, Petitioner has failed to show that he is entitled to habeas corpus relief His petition, therefore, is denied.