Johnson v. Galloway

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

TODD L. JOHNSON, )

)

Petitioner, )

)

vs. ) Case No. 3:22-cv-2072-DWD

)

WARDEN GALLOWAY, )

)

Respondent. )

MEMORANDUM & ORDER

DUGAN, District Judge:

Petitioner, an inmate at Illinois River Correctional Center, filed a Petition for a Writ

of Habeas Corpus under 28 U.S.C. § 2254. (Doc. 1). The Court stayed the case because the

Petition presented both exhausted and unexhausted claims. (Doc. 7). Thereafter,

Petitioner informed the Court, via a Status Report, that his Petition for Leave to Appeal

to the Supreme Court of Illinois was denied. (Doc. 8). Therefore, the Court lifted the stay

of the case and conducted a preliminary review of the Petition under Rule 4 of the Rules

Governing Section 2254 Cases in the U.S. District Courts. The Court ultimately found,

based on the limited record available and without commenting on the merits, that the

Petition survived a preliminary review. For the reasons explained below, however, the

Petition is DENIED on the merits and the action is DISMISSED with prejudice.

I. BACKGROUND

In June 2016, a jury in the Circuit Court of Peoria County, Illinois, convicted

Petitioner of armed robbery and aggravated robbery. (Doc. 1, pg. 1). In October 2016,

Petitioner was sentenced to 33 years of imprisonment. (Doc. 1, pg. 1). Petitioner appealed

to the Illinois Appellate Court, Third District, raising the following issues: (1) whether

defense counsel rendered ineffective assistance of counsel due to the failure to test a gun

for DNA; (2) whether the Illinois trial court erred by failing to consider Petitioner’s

request for DNA testing; (3) whether the Illinois trial court committed plain error by

conducting a portion of voir dire in chambers without Petitioner; (4) whether the Illinois

trial court applied an erroneous procedure when considering Petitioner’s claim under

Batson v. Kentucky, 476 U.S. 79 (1986); (5) whether the Illinois trial court erred in striking

Petitioner’s motion to quash arrest; and (6) whether the jury’s guilty verdicts were legally

inconsistent. See People v. Johnson, 2020 IL App (3d) 160675, ¶¶ 1, 31; (Doc. 1, pg. 2).

When resolving that appeal, the Illinois Appellate Court, over the dissent of one

justice, vacated Petitioner’s conviction and remanded the case for a new trial. See Johnson,

2020 IL App (3d) 160675, ¶¶ 47-48; (Doc. 1, pg. 2). In doing so, the Illinois Appellate Court

relied on only the first issue raised by Petitioner, i.e., whether defense counsel rendered

ineffective assistance of counsel due to the failure to test a gun for DNA. See Johnson, 2020

IL App (3d) 160675, ¶¶ 32-42. By virtue of its holding on that issue, the Illinois Appellate

Court found it unnecessary to consider Petitioner’s five other issues. See id. ¶¶ 44-45.

The State of Illinois appealed to the Supreme Court of Illinois, which unanimously

reversed the Illinois Appellate Court’s decision and affirmed Petitioner’s conviction in

the Circuit Court of Peoria County. See People v. Johnson, 2021 IL 126291, ¶¶ 1, 52-60; (Doc.

1, pg. 3). The Supreme Court of Illinois remanded the case to the Illinois Appellate Court.

On remand, the Illinois Appellate Court considered Petitioner’s five other issues,

which were mooted by the holding of its prior decision. See Johnson, 2022 WL App (3d)

160675-UB at ¶¶ 1, 30-57. The Illinois Appellate Court held: (1) the Illinois trial court did

not err by failing to consider Petitioner’s request for DNA testing; (2) the Illinois trial

court did not commit plain error by questioning a prospective juror in the absence of

Petitioner; (3) the Illinois trial court applied the correct procedure for a Batson challenge;

(4) the Illinois trial court properly struck petitioner’s motion to quash arrest; and (5) the

verdicts were not legally inconsistent. See Johnson, 2022 IL App (3d) 160675-U, ¶ 1.

Petitioner filed his Petition on September 2, 2022, raising the same six grounds for

relief. (Doc. 1, generally). However, Petitioner indicated a Petition for Leave to Appeal

was still pending before the Supreme Court of Illinois. (Doc. 1, pg. 7). The Court stayed

the case until the Supreme Court of Illinois could resolve that Petition. (Doc. 7). Petitioner

later informed the Court that the Supreme Court of Illinois denied his Petition for Leave

to Appeal. (Doc. 8, pg. 8). Accordingly, the Court completed a preliminary review under

Rule 4. (Doc. 11). The Court, in part, stated: “[I]t appears Petitioner has exhausted his

remedies in the State of Illinois.” (Doc. 11) (citing 28 U.S.C. § 2254(b)(1)(A), (c); Lewis v.

Sternes, 390 F.3d 1019, 1025-26 (7th Cir. 2004); U.S. ex rel. Jones v. Uchtman, 387 F. Supp. 2d

856, 863-64 (N.D. Ill. 2005)). It also did not “plainly appear[]” Petitioner was entitled to

no habeas relief. (Doc. 11). Based on the limited record available and without commenting

on the merits, the Court ordered the service of process on Respondent. (Doc. 11).

II. ANALYSIS

The Court’s authority to grant habeas relief to a person in state custody is derived

from 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act

of 1996. Harrington v. Richter, 562 U.S. 86, 97 (2011). Under § 2254, the Court shall entertain

a petition for a writ of habeas corpus on behalf of a person in custody pursuant to a state-

court judgment only on the ground that he or she is in custody in violation of the

Constitution or the laws or treaties of the United States. 28 U.S.C. § 2254(a). A petition for

a writ of habeas corpus shall not be granted with respect to any claim, adjudicated on the

merits, unless the adjudication: (1) resulted in a decision that was contrary to, or involved

an unreasonable application of, clearly established federal law, as determined by the

Supreme Court; or (2) resulted in a decision based on an unreasonable determination of

the facts in light of the evidence presented in the state court proceedings. Id. § 2254(d).

A decision is “contrary to…clearly established federal law” if the rule applied

differs from the law set forth by the Supreme Court. Bailey v. Lemke, 735 F.3d 945, 949 (7th

Cir. 2013) (citing Bell v. Cone, 535 U.S. 685, 694 (2002)). A decision “involve[s] an

unreasonable application of clearly established federal law” if the decision correctly

identifies, but unreasonably applies, the rule of law to the facts of the case. Id. (citing

Williams v. Taylor, 529 U.S. 362, 407 (2000)). The “operative decision” to be reviewed is

that of the last state court to reach the merits of the claim. Stechauner v. Smith, 852 F.3d

708, 714 (7th Cir. 2017) (quoting Harris v. Thompson, 698 F.3d 609, 623 (7th Cir. 2012)). State

court determinations of factual issues are presumptively correct, and only clear and

convincing evidence will rebut that presumption. 28 U.S.C. § 2254(e)(1).

A state court’s finding that a claim is meritless precludes federal habeas corpus

relief under § 2254(d) if “fairminded jurists” could disagree about whether the decision

was correct. Harrington, 562 U.S. at 101 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664

(2004)). This Court asks whether arguments or theories supported or could have

supported the state court’s decision, such that “fairminded jurists” could disagree about

whether the arguments or theories are inconsistent with a Supreme Court decision. Id. at

102; accord Winfield v. Dorethy, 871 F.3d 555, 560 (7th Cir. 2017). Put another way, the state

court’s ruling must be so lacking in justification that the error was “well understood and

comprehended in existing law beyond any possibility for fairminded disagreement.”

Harrington, 562 U.S. at 103; accord Smith v. Boughton, 43 F.4th 702, 708 (7th Cir. 2022).

Notably, a strong case for relief does not necessarily result in a conclusion that the

state court’s contrary decision was unreasonable. Harrington, 562 U.S. at 102; accord Cal v.

Garnett, 991 F.3d 843, 850 (7th Cir. 2021). The standard applied to § 2254(d) is meant to be

difficult because that provision preserves the authority to issue a writ of habeas corpus

only if “there is no possibility fairminded jurists could disagree” about whether the

decision conflicts with Supreme Court precedent. Harrington, 562 U.S. at 102; accord Cal,

991 F.3d at 849-50. In this way, § 2254(d) “is a ‘guard against extreme malfunctions in the

state criminal justice systems,’ not a substitute for ordinary error correction through

appeal.” Harrington, 562 U.S. at 102-03 (quoting Jackson v. Virginia, 443 U.S. 307, 332, n. 5

(1979) (Stevens, J., concurring in judgment)); accord Smith, 43 F.4th at 708. With these

principles in mind, the Court proceeds to a consideration of Petitioner’s claims.

A. Ground 1—Ineffective Assistance of Counsel

Ineffective assistance of counsel claims are governed by Strickland v. Washington,

466 U.S. 668 (1984), and its progeny of cases. The benchmark for such claims is whether

counsel’s conduct so undermined the proper functioning of the adversarial process that

the proceeding cannot be relied upon to have produced a just result. Strickland, 466 U.S.

at 686-87; accord Shannon v. U.S., 39 F.4th 686, 877 (7th Cir. 2022). To succeed on an

ineffective assistance of counsel claim, Petitioner must show: (1) counsel’s performance

was deficient, meaning the errors were so serious that counsel was not functioning as the

“counsel” guaranteed by the Sixth Amendment; and (2) counsel’s deficient performance

caused prejudice, such that the errors were so serious that they deprived Petitioner of a

fair trial and a reliable result. Strickland, 466 U.S. at 687; accord Shannon, 39 F.4th at 877.

The first prong of the Strickland test requires a showing that counsel’s

representation “fell below an objective standard of reasonableness.” Strickland, 466 U.S.

at 687-88; accord Shannon, 39 F.4th at 877. There is a “strong presumption” that counsel’s

representation was within the “wide range” of reasonable professional assistance.

See Harrington, 562 U.S. at 104 (quoting Strickland, 466 U.S. at 689). The second prong of

the Strickland test requires a showing that there is a reasonable probability, i.e., a

probability sufficient to undermine confidence in the outcome, that the result of the

proceeding would have been different but for the unprofessional errors of counsel.

Strickland, 466 U.S. at 694; accord Shannon, 39 F.4th at 877. This requires more than “some

conceivable effect on the outcome of the proceeding.” Harrington, 562 U.S. at 104 (quoting

Strickland, 466 U.S. at 693). These prongs of the Strickland test must be considered in light

of the totality of the evidence. Shannon, 39 F.4th at 877. If Petitioner fails to satisfy either

prong, then a court may dispose of the claim without considering the other prong. Id.

The Court stresses the “pivotal question” is whether the Illinois court’s ruling was

“contrary to or involved an unreasonable application of” Strickland under § 2254(d)(1).

Harrington, 562 U.S. at 101; 28 U.S.C. § 2254(d)(1). Questions of an “unreasonable

application of” Strickland are different from questions of whether counsel’s performance

fell below an objective standard of reasonableness under Strickland. Harrington, 562 U.S.

at 101. This is because unreasonable applications of Strickland, and incorrect applications

of Strickland, are distinguishable in the context of § 2254(d)(1). Id. (citing Williams v. Taylor,

529 U.S. 362, 410 (2000)); accord Jensen v. Clements, 800 F.3d 892, 908 (7th Cir. 2015). State

courts “must be granted a deference and latitude [under § 2254(d)(1)] that are not in

operation when the case involves review under the Strickland standard itself.” Harrington,

562 U.S. at 101; accord Winfield, 871 F.3d at 560. Finally, the standards that apply to

Strickland and § 2254(d) are “highly deferential,” and the review is “ ‘doubly’ so” when

the two standards operate in tandem. Harrington, 562 U.S. at 103 (quoting Strickland, 466

U.S. at 689; Lindh v. Murphy, 521 U.S. 320, 333, n. 7 (1997); Knowles v. Mirzayance, 562 U.S.

86, 123 (2009)); accord Sigmon v. Stirling, 956 F.3d 183, 192 (4th Cir. 2020).

Petitioner argues his trial counsel was ineffective for the failure to request “D.N.A.

testing of swabs taken from a firearm allegedly use[d] [as] a bludgeon during an arm[ed]

robbery.” (Docs. 1, pg. 8; 28, pgs. 5-10). Counsel allegedly failed to understand the swabs

of the firearm were taken. (Doc. 1, pg. 8). Petitioner indicates he was adamant such testing

should occur, and that the state court likely would have allowed the testing if there had

been a timely request. (Doc. 1, pg. 8). Petitioner argues there was a reasonable probability

that he would have been acquitted if the swabs were tested. (Doc. 1, pg. 8).

Respondent argues, despite the findings of the Illinois Appellate Court, Third

District, the Supreme Court of Illinois held this claim was meritless because Petitioner

failed to show prejudice. (Doc. 26, pgs. 15-17). More specifically, Respondent argues: “any

argument that petitioner was prejudiced requires speculating about the results of

hypothetical DNA testing.” (Doc. 26, pgs. 17-18). And, even though the Supreme Court

of Illinois did not address the performance prong of the Strickland test, Respondent argues

Petitioner cannot show his trial counsel performed deficiently. (Doc. 26, pg. 15).

Here, the “operative decision” under review is that of a unanimous Supreme

Court of Illinois when addressing Petitioner’s ineffective assistance of counsel claim.

See Stechauner, 852 F.3d at 714; Johnson, 2021 IL 126291, ¶¶ 56-60. It reasoned as follows:

¶ 56 Before this court, the parties dispute whether defendant is able to

satisfy either prong of Strickland. Defendant correctly notes, however, that

in the appellate court and in its petition for leave to appeal, the State did

not argue that counsel’s performance was not deficient; it contended only

that defendant was unable to demonstrate resulting prejudice. In its

petition for leave to appeal, the State conceded, in fact, that “counsel’s

mistaken belief that DNA swabs were unavailable for testing constituted

deficient performance given the contrary record evidence.” We thus find

that the State has forfeited its present claim that defendant is unable to

demonstrate that counsel’s performance was deficient. See, e.g., People v.

Dorsey, 2021 IL 123010, ¶ 70, 451 Ill.Dec. 258, 183 N.E.3d 715; People v.

Robinson, 223 Ill. 2d 165, 173-74, 308 Ill.Dec. 19, 860 N.E.2d 1101

(2006). Moreover, because we conclude that defendant is unable to establish

that, but for counsel’s failure to have the swabs tested, there is a reasonable

probability that the outcome of the trial would have been different, we need

not consider whether defendant can satisfy Strickland’s performance

prong. Givens, 237 Ill. 2d at 331, 343 Ill.Dec. 146, 934 N.E.2d 470.

¶ 57 In Scott, 2011 IL App (1st) 100122, ¶¶ 1, 15-17, 354 Ill.Dec. 850, 958

N.E.2d 1046, after the defendant’s first degree murder conviction was

affirmed on direct appeal, he filed a postconviction petition alleging that

his trial attorney was ineffective for failing to pursue DNA testing of a shirt

that the defendant purportedly wore during the commission of the

offense. The defendant maintained that DNA testing might have resulted

in potentially exculpatory and highly relevant evidence because the

absence of his DNA on the shirt, coupled with the presence of someone

else’s, would have suggested that the defendant had been wrongly

identified by the State’s eyewitnesses. Id. ¶ 30. When rejecting the

defendant’s ineffective-assistance claim, the appellate court concluded that

the defendant could not establish prejudice under Strickland because any

arguments regarding the potential results of the unperformed testing were

entirely speculative. Id. ¶ 31. The court noted that it was not known

whether the shirt contained DNA sufficient for testing, “let alone whether

the results would be exculpatory.” Id. “Without test results,” the court

explained, it could not determine whether there was a reasonable

probability that the result of the defendant’s trial would have been different

had testing been pursued. Id. The court further noted that any opinion that

could be made with respect to prejudice would be advisory because there

was no exculpatory evidence to consider. Id.

¶ 58 Here, the dissent rightly relied on Scott when concluding that

defendant was unable to demonstrate prejudice for purposes of Strickland.

See 2020 IL App (3d) 160675, ¶ 53, 444 Ill.Dec. 890, 165 N.E.3d 536 (Schmidt,

J., dissenting). Although Patterson’s pistol was swabbed for potential DNA,

it is unknown whether the swabs contain DNA sufficient for testing, let

alone whether the results would be exculpatory. Furthermore, because

there is no exculpatory evidence for us to consider, any opinion that could

be made with respect to prejudice would be advisory. Defendant argues

that Scott’s rationale should be limited to its facts, but its pertinent holding

was not factually dependent. It was rather a practical application of the

well-established rule that prejudice under Strickland cannot be based on

“mere conjecture or speculation.” Palmer, 162 Ill. 2d at 481, 205 Ill.Dec. 506,

643 N.E.2d 797; see also Wildman v. Johnson, 261 F.3d 832, 839 (9th Cir.

2001) (speculation as to what an expert witness would say is insufficient to

establish prejudice); People v. Dupree, 2018 IL 122307, ¶¶ 34-40, 429 Ill.Dec.

398, 124 N.E.3d 908 (explaining that a defendant cannot prevail on a claim

that counsel was ineffective for failing to investigate witnesses without

sufficient evidence that the witnesses would have provided testimony

favorable to the defense); People v. Olinger, 176 Ill. 2d 326, 363, 223 Ill.Dec.

588, 680 N.E.2d 321 (1997) (rejecting the defendant’s claim that counsel was

ineffective for failing to pursue a strategy based on unidentified

fingerprints found at the crime scene where his claim that the prints might

have exonerated him was “pure speculation” falling “far short of the

demonstration of actual prejudice required by Strickland”); People v.

Thompson, 2020 COA 117, ¶ 55, 485 P.3d 566 (rejecting the defendant’s claim

that counsel’s failure to request additional DNA testing resulted in

prejudice as “inherently speculative” given that the additional testing had

not been performed). As the dissent rightly observed, the appellate

majority in the present case essentially created a new test, which in

contravention of Strickland “allows a defendant to assume, for the purposes

of establishing ineffective assistance, that any DNA tests will come out in

his favor.” 2020 IL App (3d) 160675, ¶ 54, 444 Ill.Dec. 890, 165 N.E.3d

536 (Schmidt, J., dissenting).

Johnson, 2021 IL 126291, ¶¶ 56-58.

This reasoning was, by no means, contrary to or an unreasonable application of

Strickland under § 2254(d)(1). See Harrington, 562 U.S. at 101, 103; 28 U.S.C. § 2254(d)(1).

Indeed, the Supreme Court of Illinois correctly expressed the principle that Strickland

prejudice cannot be shown with speculative arguments about potentially exonerating

evidence like unperformed DNA testing. See, e.g., U.S. v. Asubonteng, 895 F.2d 424, 429

(7th Cir. 1990) (“This court has consistently held that such conclusory allegations [about

potentially exonerating evidence in the form of unknown witness testimony] do not

satisfy Strickland’s prejudice component.”) (collecting cases); Barkauskas v. Lane, 946 F.2d

1292, 1295 (7th Cir. 1991) (“Looking solely by analogy at authority considering the

requirement of a showing of prejudice in a claim of ineffective assistance of counsel, the

party must present evidence, not mere conclusory allegations, that counsel overlooked

exculpatory testimony.”) (collecting cases); U.S. v. Ashimi, 932 F.2d 643, 650 (7th Cir. 1991)

(“A defendant cannot simply state that the testimony would have been favorable; self-

serving speculation will not sustain an ineffective assistance claim.”); U.S. v. Rogers, 13

Fed. App’x 386, 389 (7th Cir. 2001) (“[The defendant] overlooks numerous decisions of

this court stating that “conclusory allegations” without more cannot establish a Sixth

Amendment violation.”); U.S. v. Traeger, 289 F.3d 461, 473 (7th Cir. 2002) (“A defendant’s

speculation about what evidence might have been found is insufficient to demonstrate

prejudice—he must show what the evidence would have been and how it would have

produced a different result.”); George v. Smith, 586 F.3d 479, 485-86 (7th Cir. 2009) (“[T]he

petitioner must ‘affirmatively prove’ the prejudice prong of his Strickland claim and

show that the errors actually had an adverse effect on the defense. To demonstrate

prejudice from counsel’s deficient performance, a defendant must show that there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different. If a defendant is unable to make a sufficient

showing on either component of the Strickland standard, we need not consider the other

component.”) (Emphasis in original) (cleaned up); Magee v. Smith, 403 Fed. App’x 84, 86

(7th Cir. 2010) (“The prejudice prong requires something beyond speculation that the

jury verdict may have been tainted by counsel’s deficiency.”); U.S. v. Jackson, 930 F. Supp.

1228, 1234 (N.D. Ill. 1996) (“Mere conclusory assertions that errors prevented an acquittal

do not satisfy Strickland’s prejudice requirement.”). The Court stresses “it is unknown

whether the swabs contain DNA sufficient for testing, let alone whether the results would

be exculpatory,” so the Supreme Court of Illinois could not even opine, in a non-advisory

fashion, on whether there was a reasonable probability that the result of Petitioner’s jury

trial would have been different absent trial counsel’s allegedly deficient performance.

See Strickland, 466 U.S. at 687, 694; Shannon, 39 F.4th at 877; Harrington, 562 U.S. at 104;

Johnson, 2021 IL 126291, ¶ 58. It is notable, though, that even if the test results tended to

be exculpatory, in that they indicated the firearm did not contain the DNA of the worker

“bludgeon[ed]” at the gas station, that would not necessarily indicate the Supreme Court

of Illinois would find prejudice due to the other evidence admitted at the jury trial.

See Jeffries v. Adkins, No. 21-cv-3637, 2024 WL 1363633, *24 (N.D. Ill. March 29, 2024)

(“Even if Petitioner’s counsel had requested DNA testing on the hair, and even if that

testing had not matched Petitioner, the Court has no[] reason to think the results would

have altered the outcome of Petitioner’s trial.”). Therefore, when granting the Supreme

Court of Illinois the deference and latitude owed in a case involving both § 2254(d)(1) and

Strickland, it is clear Petitioner’s Petition must be DENIED on the first ground for relief.

See Harrington, 562 U.S. at 101, 103; Winfield, 871 F.3d at 560; Sigmon, 956 F.3d at 192.

B. Grounds 2 through 6

Petitioner invokes the following issues as grounds 2 through 5 in the Petition:

whether the Illinois trial court erred by failing to consider Petitioner’s request for DNA

testing; whether the Illinois trial court committed plain error by conducting a portion of

voir dire in chambers without Petitioner; whether the Illinois trial court applied an

erroneous procedure when considering Petitioner’s claim under Batson; whether the

Illinois trial court erred in striking Petitioner’s motion to quash arrest; and whether the

jury’s guilty verdicts were legally inconsistent. (Doc. 1, generally). Respondent, for his

part, initially notes the latter two grounds do not appear in the Petition other than “as

passing references made while listing his claims.” (Doc. 26, pg. 11). Respondent

recognizes, however, “petitioner’s later filings made it clear that he intended to raise all

six of the claims.” (Doc. 26, pg. 11). In any event, though, Respondent argues grounds 2

and 6 are not cognizable, ground 3 was denied on an adequate and independent state law

basis, and grounds 2 through 5 are procedurally defaulted. (Doc. 26, pgs. 11-14).

Section 2254(b)(1), which is relevant here, states: “An application for a writ of

habeas corpus on behalf of a person in custody pursuant to the judgment of a State court

shall not be granted unless it appears that (A) the applicant has exhausted the remedies

available in the courts of the State; or (B)(i) there is an absence of available State corrective

process; or (ii) circumstances exist that render such process ineffective to protect the

rights of the applicant.” 28 U.S.C. § 2254(b)(1). “An applicant shall not be deemed to have

exhausted the remedies available in the courts of the State…if he has the right under the

law of the State to raise, by any available procedure, the question presented.” Id. § 2254(c).

The exhaustion requirement is based on the principle that, in a federal system,

states should have an opportunity to correct violations of a state prisoner’s federal rights.

Hicks v. Hepp, 871 F.3d 513, 530 (7th Cir. 2017) (quoting Coleman v. Thompson, 501 U.S. 722,

731 (1991)). A petitioner must “fairly present” claims in the state court, meaning he or she

asserts the claims, on direct appeal or in postconviction proceedings, in “one complete

round of state-court review.” Lewis, 390 F.3d at 1025 (citing Baldwin v. Reese, 541 U.S. 27,

124 (2004); O’Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999); Picard v. Connor, 404 U.S. 270,

275 (1971)). This means the claims are raised “at each and every level in the state court

system, including levels at which review [wa]s discretionary rather than mandatory.” Id.

at 1025-26 (citing O’Sullivan, 526 U.S. at 845)); see also Uchtman, 387 F. Supp. 2d at 863-64

(stating a “complete round of state-court review” in Illinois comprises a review by the

Appellate Court and at least a petition for review by the Supreme Court).

Notably, it is not enough that the facts necessary to support a claim were before

the state court or that Petitioner raised a similar state law claim. Momient-El v. DeTella,

118 F.3d 535, 539 (7th Cir. 1997) (quoting Verdin v. O'Leary, 972 F.2d 1467, 1474 (7th Cir.

1992)). Instead, both the operative facts and the controlling legal principles must be

presented to the state court. Id. (quoting Verdin, 972 F.2d at 1474). If the petitioner

exhausted his or her state court remedies without raising claims in a “complete round of

state-court review,” then the claims are procedurally defaulted. Lewis, 390 F.3d at 1026

(citing O’Sullivan, 526 U.S. at 848-49; Howard v. O’Sullivan, 185 F.3d 721, 725 (7th Cir.

1999); Momient-El, 118 F.3d at 541). In that instance, habeas relief is unavailable unless a

petitioner can show cause for and prejudice from the procedural default or that a denial

of habeas corpus relief will result in a miscarriage of justice. Id. at 1026 (citing Wainwright

v. Sykes, 433 U.S. 72, 86-87 (1977); Murray v. Carrier, 477 U.S. 478, 495-96 (1986)).

Here, the Court must conclude Petitioner failed to “fairly present” grounds 2

through 5 for a “complete round of state-court review,” such that those grounds for relief

are procedurally defaulted. See 28 U.S.C. § 2254(b)(1), (c); Lewis, 390 F.3d at 1025-26;

Uchtman, 387 F. Supp. 2d at 863-64; Momient-El, 118 F.3d at 539. The record reflects

Petitioner presented all six grounds for relief to the Illinois Appellate Court, Third

District, on direct appeal. See Johnson, 2020 IL App (3d) 160675 at ¶¶ 1, 31; (Docs. 1, pgs.

10, 12, 14, 16; 27-2, generally). That court resolved the appeal, in Petitioner’s favor, based

only on his first ground for relief. See Johnson, 2020 IL App (3d) 160675 at ¶¶ 1, 30-48.

Thereafter, the Supreme Court of Illinois reversed the decision of the Illinois Appellate

Court, Third District, on the first ground for relief, and remanded the case to that court

for consideration of grounds 2, 3, 4, 5, and 6. See Johnson, 2021 IL 126291 at ¶¶ 1, 52-60.

The Illinois Appellate Court, Third District, rejected those remaining grounds for relief,

and Petitioner unsuccessfully filed a Petition for Leave to Appeal to the Supreme Court

of Illinois based only on the sixth ground for relief. See Johnson, 2022 WL App (3d) 160675-

UB at ¶¶ 1, 30-57; (Doc. 27-12). Since Petitioner never “fairly present[ed]” grounds 2, 3,

4, and 5 to the Supreme Court of Illinois, those grounds for relief are procedurally

defaulted.1 2 And, importantly, Petitioner has provided no basis for the Court to find the

procedural default was excusable. See Lewis, 390 F.3d at 1026. Therefore, habeas relief is

unavailable on grounds 2, 3, 4, and 5. The Petition is DENIED on those grounds for relief.

Finally, on ground 6, which is based on the jury’s allegedly legally inconsistent

verdicts, Petitioner is not entitled to habeas relief. The Seventh Circuit has recognized:

[E]ven assuming that the verdicts were legally inconsistent, the Illinois

Supreme Court’s decision not to grant a new trial did not involve an

unreasonable application of United States Supreme Court precedent. The

United States Supreme Court has held that inconsistent verdicts are

constitutionally tolerable.

1Based on this ruling, it is unnecessary to make additional findings as to ground 3; however,

Respondent correctly notes ground 3 was reviewed by the Illinois Appellate Court, Third District, under

the plain error doctrine because Petitioner “failed to preserve the issue for appellate review.” See Johnson,

2022 WL App (3d) 160675-UB at ¶¶ 47-50; (Doc. 26, pg. 14). In other words, Respondent is correct that

ruling was based, at least in part, on forfeiture principles, which represent an adequate and independent

state law basis for rejecting ground 3. On this point, the Seventh Circuit has recognized:

When a state court resolves a federal claim by relying on a state law ground that is both

independent of the federal question and adequate to support the judgment, federal habeas

review of the claim is foreclosed. Woods v. Schwartz, 589 F.3d 368, 373 (7th Cir.

2009); Coleman v. Thompson, 501 U.S. 722, 729, 111 S. Ct. 2546, 115 L.Ed.2d 640 (1991). The

state law ground relied on by the state court can be procedural, in which case the claims

are “commonly referred to as being procedurally defaulted.” Woods, 589 F.3d at 373. Thus,

when a state court refuses to reach the merits of a petitioner’s federal claims because they

were not raised in accord with the state’s procedural rules (i.e., because the petitioner failed

to contemporaneously object), that decision rests on independent and adequate state

procedural grounds. See Woods, 589 F.3d at 373; Gray v. Hardy, 598 F.3d 324, 329 (7th Cir.

2010).

Kaczmarek v. Rednour, 627 F.3d 586, 591 (7th Cir. 2010); accord Carter v. Douma, 796 F.3d 726, 733-34 (7th Cir.

2015); see also Gray, 598 F.3d at 329 (“[W]e have repeatedly explained that where a state court reviews the

claim for plain error as the result of a state procedural bar such as the Illinois doctrine of waiver, that limited

review does not constitute a decision on the merits.”).

2In Illinois, “determinations of the reviewing court on direct appeal are res judicata as to issues

actually decided and issues that could have been raised in the earlier proceeding, but were not, are deemed

waived.” People v. Johnson, 183 Ill.2d 176, 186 (1998) (citing People v. Coleman, 168 Ill.2d 509, 522 (1995)).

Mahaffey v. Schomig, 294 F.3d 907, 921 (7th Cir. 2002) (citing Los Angeles v. Heller, 475 U.S.

796, 804 n. 10 (1986) (collecting cases); Standefer v. U.S., 447 U.S. 10, 25 (1980)); see also U.S.

v. Bailin, 977 F.2d 270, 277 (7th Cir. 1992) (“Inconsistent simultaneous verdicts are

permissible because the jury may have ‘properly reached its conclusion on the conviction

and then through mistake, compromise, or lenity, arrived at an inconsistent conclusion’

on the acquitted count.”) (cleaned up); White v. Hulick, No. 7-cv-2112, 2008 WL 11441890,

*8 (C.D. Ill. June 12, 2008) (“The Supreme Court has rejected the idea that there is a

constitutionally guaranteed right to a consistent verdict. Any relief Petitioner might

receive for inconsistent verdicts would be under state law and is thus not cognizable

under federal habeas review.”) (cleaned up)).

Accordingly, Petitioner’s Petition must also be DENIED on ground 6.

III. CONCLUSION

As explained above, the Petition is DENIED and the action is DISMISSED with

prejudice. The Clerk of the Court is DIRECTED to enter judgment accordingly.

Since Petitioner’s detention arises out of the process issued by a state court, he may

only appeal the final order in this proceeding if the Court issues a certificate of

appealability. 28 U.S.C. § 2253(c)(1)(A); see also Rule 11(a) of the Rules Governing Section

2254 Cases in the U.S. District Courts (“[T]he district court must issue or deny a certificate

of appealability when it enters a final order adverse to the applicant.”). A certificate of

appealability may issue under § 2253(c)(1) only if Petitioner made a substantial showing

of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). He must show that reasonable

jurists could debate whether the Petition should have been resolved differently or

whether the issues presented adequately deserved encouragement to proceed. Miller-El

v. Cockrell, 537 U.S. 322, 336 (2003); accord Brown v. Brown, 847 F.3d 502, 515 (7th Cir. 2017).

Similarly, if Petitioner’s claims were dismissed on procedural grounds, without

consideration of the merits, then he must show jurists of reason would find it debatable

whether there was a valid claim for the denial of a constitutional right and whether the

district court was correct in its procedural ruling. Slack v. McDaniel, 529 U.S. 473, 484

(2000); accord Peterson v. Douma, 751 F.3d 524, 530-31 (2014). Section 2253(c) requires an

overview and general assessment of the merits of the claims, but the threshold inquiry

by the Court does not require full consideration of the factual or legal bases that support

Petitioner’s claims. See Miller-El, 537 U.S. at 336; accord Brown, 847 F.3d at 515.

Here, the Court concludes no reasonable jurist would debate whether its rulings

on the substantive issues and as to procedural default were correct. See Miller-El, 537 U.S.

at 336; Brown, 847 F.3d at 515. Accordingly, a certificate of appealability is DENIED. If he

wishes, Petitioner may reapply for a certificate of appealability with the United States

Court of Appeals for the Seventh Circuit. See Fed. R. App. P. 22(b); 28 U.S.C. § 2253(c)(1).

SO ORDERED.

Dated: September 16, 2025 Lt (Vv J

DAVID W.DUGAN

United States District Judge

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