559 F.3d 746 (7th Cir. 2009), 08-1695, Johnson v. Pollard

Docket Nº:08-1695.
Citation:559 F.3d 746
Party Name:Jimmie JOHNSON, Petitioner-Appellant, v. William POLLARD, Warden, Respondent-Appellee.
Case Date:March 24, 2009
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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559 F.3d 746 (7th Cir. 2009)

Jimmie JOHNSON, Petitioner-Appellant,


William POLLARD, Warden, Respondent-Appellee.

No. 08-1695.

United States Court of Appeals, Seventh Circuit.

March 24, 2009

Argued Oct. 30, 2008.

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[Copyrighted Material Omitted]

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Jeffrey W. Jensen, Attorney (argued), Milwaukee, WI, for Petitioner-Appellant.

Daniel J. O'Brien, Attorney (argued), J.B. Van Hollen, Attorney, Office of the Attorney General Wisconsin Department of Justice, Madison, WI, for Respondent-Appellee.

Before EASTERBROOK, Chief Judge, and RIPPLE and TINDER, Circuit Judges.

RIPPLE, Circuit Judge.

Jimmie Johnson was convicted in Wisconsin state court of reckless homicide, recklessly endangering safety and being a felon in possession of a firearm. The trial court admitted into evidence Mr. Johnson's confession. Mr. Johnson claims that this confession was the product of police coercion and, consequently, was inadmissible at trial. After unsuccessfully seeking relief in the Wisconsin courts, Mr. Johnson filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254. The district court denied his petition and later denied his request for a certificate of appealability. We granted a certificate of appealability on the issue of whether Mr. Johnson's confession was voluntary. For the reasons set forth in this opinion, we affirm the judgment of the district court.



On September 20, 2000, two men were fatally injured and three individuals were wounded when a gunman opened fire outside a Milwaukee tavern. Mr. Johnson was implicated in the shootings, and police arrested him on unrelated charges in the early morning hours of October 2, 2000. The police interviewed Mr. Johnson on multiple occasions following his arrest.1

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Mr. Johnson initially denied any involvement in the shootings and agreed to take a polygraph test, which was administered on October 3, 2000. At the conclusion of the test, Mr. Johnson signed a statement indicating the following: (1) he knowingly and intelligently had waived his rights during the examination; (2) his statements during the examination were made willingly; and (3) he understood that the examination was over and that any questions that the police might ask and any answers that he might give from that point forward would not be part of the polygraph examination.

Approximately three hours after the examination concluded, Mr. Johnson was read his Miranda rights and interviewed by the police. During the interview, Detective Heier made the following statement: " It's my understanding you must have failed that polygraph because you're still here." 2 R.37 at 34. The officers made no other remarks about the results of the polygraph examination. Following the statement by Detective Heier, Mr. Johnson's demeanor changed, and he confessed to his involvement in the shooting. He subsequently was convicted by a Milwaukee County jury of two counts of reckless homicide, three counts of recklessly endangering safety and one count of being a felon in possession of a firearm.

Mr. Johnson appealed his conviction to the Court of Appeals of Wisconsin, claiming that his " confession was coerced in violation of the Fifth Amendment when City of Milwaukee police detectives overcame [his] will by use of the polygraph

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examination process." R.6, Ex. I at 43. Despite framing the issue on appeal in federal constitutional terms, Mr. Johnson's brief neither relied upon federal case law discussing the Fifth Amendment nor specifically referenced those portions of Wisconsin cases that addressed the voluntariness issue in terms of federal constitutional law; 3 the primary contention in his brief was that the polygraph examination and the interview following the examination

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constituted a single event, and, as such, any statements made during the examination and the interview were inadmissible. The Court of Appeals of Wisconsin held that the post-polygraph interview was distinct both in time and in location from the polygraph examination. The appellate court therefore affirmed Mr. Johnson's conviction, and the Supreme Court of Wisconsin denied Mr. Johnson's petition for discretionary review.

After unsuccessfully challenging his conviction on appeal, Mr. Johnson sought collateral post-conviction relief in the Wisconsin state courts. The trial court denied relief and the judgment was affirmed by the Court of Appeals of Wisconsin. The Supreme Court of Wisconsin denied review.

Mr. Johnson filed this habeas corpus petition in the United States District Court for the Eastern District of Wisconsin. The district court rejected his petition and denied his request for a certificate of appealability. We granted his request for a certificate of appealability on the question of whether his confession was involuntary.



This appeal presents two issues: First, the State contends that we are precluded from reviewing Mr. Johnson's federal constitutional claim because he did not present that claim in the state-court proceedings. Second, Mr. Johnson argues that the state court violated his Fifth Amendment rights by admitting the confession into evidence.


The State submits that Mr. Johnson failed to present his Fifth Amendment claim to the Wisconsin courts. In its view, therefore, we are precluded from considering the merits of Mr. Johnson's petition. " Whether a party has procedurally defaulted his claim is a question of law that we review de novo." Malone v. Walls, 538 F.3d 744, 753 (7th Cir.2008) (citing Lieberman v. Thomas, 505 F.3d 665, 670 (7th Cir.2007)).

Our authority to grant a petition is limited by 28 U.S.C. § 2254(b), which provides that " [a]n application for a writ of habeas corpus ... shall not be granted unless ... the applicant has exhausted the remedies available in the courts of the State." 4 Implicit in the exhaustion requirement is the related condition which requires petitioners to " fairly presen[t] federal claims to the state courts in order to give the State the opportunity to pass upon and correct alleged violations of its prisoners' federal rights." Duncan v. Henry, 513 U.S. 364, 365, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995) (alteration in original) (citations and quotation marks omitted); see also O'Sullivan v. Boerckel, 526 U.S. 838, 845, 848, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999) (" To ... protect the integrity of the federal exhaustion rule, we ask not only whether a prisoner has exhausted state remedies, but also whether he has properly exhausted those remedies, i.e., whether he has fairly presented his claims to the state courts." (citations and quotation marks omitted)); Hough v. Anderson, 272 F.3d 878, 892 (7th Cir.2001). In order to satisfy this requirement, a petitioner must fairly present his federal claims at each level of the state's established review process. See Woodford v. Ngo, 548 U.S. 81, 92, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006) (noting that " [a] state prisoner is generally barred from obtaining federal

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habeas relief unless the prisoner has properly presented his or her claims through one complete round of the State's established appellate review process" (citations and quotation marks omitted)).5 Failure to do so constitutes procedural default that precludes review by federal courts. See id. at 92, 126 S.Ct. 2378 (" the sanction for failing to exhaust properly (preclusion of review in federal court) is given the separate name of procedural default" ); Lewis v. Sternes, 390 F.3d 1019, 1025-26 (7th Cir.2004).

However, we need not address the procedural default issue raised by the State because Mr. Johnson's claim clearly fails on the merits. See 28 U.S.C. § 2254(b)(2); see, e.g., Bell v. Cone, 543 U.S. 447, 451, 451 n. 3, 125 S.Ct. 847, 160 L.Ed.2d 881 (2005) (declining to address whether the court of appeals correctly held that the petitioner had not defaulted on his claim and citing 28 U.S.C. § 2254(b)(2) for the proposition that " an application for habeas corpus may be denied on the merits, notwithstanding a petitioner's failure to exhaust in state court" ); Lambrix v. Singletary, 520 U.S. 518, 525, 117 S.Ct. 1517, 137 L.Ed.2d 771 (1997) (acknowledging that a federal court may deny a petition for habeas corpus on the merits without resolving whether the issue was presented fairly to the state courts).


Mr. Johnson maintains that the admission of his confession violated his Fifth Amendment rights because the confession was involuntary. Ordinarily, our review of a habeas petition is governed by the standards set forth in the Antiterrorism and Effective Death Penalty Act (" AEDPA" ), 28 U.S.C. § 2254, which provides...

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