Johnson v. Thurmer
| Decision Date | 18 October 2010 |
| Docket Number | No. 07-2628.,07-2628. |
| Citation | 624 F.3d 786 |
| Parties | Herbert JOHNSON, Sr., Petitioner-Appellant, v. Michael THURMER, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
OPINION TEXT STARTS HERE
Mickelle Olawoye (argued), Naperville, IL, for Petitioner-Appellant.
William L. Gansner (argued), Office of the Attorney General, Madison, WI, for Respondent-Appellee.
Before CUDAHY, KANNE, and TINDER, Circuit Judges.
Herbert Johnson was charged with five counts of armed robbery in Wisconsin state court, convicted by a jury, and sentenced to sixty-eight years in prison. After Johnson's no-merit appeal concluded, he attempted to traverse the murky waters of state collateral attack, bringing new claims of ineffective assistance of trial and appellate counsel. The state courts held that Johnson's new claims were procedurally defaulted because he had not raised them in response to the initial no-merit report. Johnson then filed a writ of habeas corpus in the United States District Court for the Eastern District of Wisconsin, again asserting ineffective assistance of trial and appellate counsel. The district court denied the writ on the merits, but only after holding that the Wisconsin court ruling of procedural default was not an adequate and independent state ground barring federal review. Johnson now appeals the denial of the writ. We agree with the district court's ruling that habeas review was not precluded by state procedural default. Because Johnson's ineffective assistance of counsel claims lack merit, we affirm the denial of the writ.
In the muggy July and August of 1999, five similar robberies occurred throughout greater Milwaukee, four at various Payless Shoes stores and one at an area Family Dollar. During each robbery, two men entered the store, ostensibly as shoppers, and one eventually approached an employee with a gun and demanded money. Police came to suspect Johnson as the gunman of this pair when he reentered a store he had already robbed and was recognized by one of the employees, who recorded his license number and advised the authorities. Based on that tip, police located and arrested Johnson. They then searched the common areas of his residence with his girlfriend's consent, finding clothing and other items used in the robberies. Police also conducted an in-person lineup, where Johnson was identified as the gunman by witnesses to each crime.
Counsel was appointed for Johnson, an event that marked the beginning of a rocky relationship between Johnson and his counsel in general. Trial preparation proceeded uneventfully, at least until the week before trial. At that point, Johnson's counsel reported to the judge's clerk that he had an appointment to see a psychiatrist on the day of trial and, in doing so, made a statement that led the clerk to believe that he may have been suicidal. On the morning scheduled for trial, an in-chambers conference was held concerning counsel's remarks. Johnson was not present at that conference. During that meeting, counsel reported that the clerk had misunderstood him and that he was not suicidal. He admitted to being on medication for depression, but said he felt fine and was able to proceed. The following day, the state trial judge provided a verbal summary of the in-chambers conference to Johnson, confirmed that counsel had discussed the matter with him, and verified that Johnson wished to continue.
Trial commenced that same day, with the bulk of the State's case consisting of witnesses who identified Johnson as the gunman at each of the robberies. One witness, Jessica Zaccone, identified Johnson as the man who robbed her store and provided a description of Johnson from the day of the robbery. In her testimony, Zaccone included one detail about Johnson's appearance that she had not reported to police in reference to the charged robbery. That detail was actually from a description of Johnson regarding a second, uncharged robbery at the same store. Defense counsel failed to object or have the testimony stricken, even though testimony relating to uncharged crimes was prohibited by court order. Defense counsel did file a motion for a mistrial based on Zaccone's testimony at the conclusion of the State's case. That motion was denied.
Johnson was found guilty by a jury on all counts, sentenced, and counsel was appointed to represent him on appeal. Appellate counsel filed a no-merit report with the Wisconsin Court of Appeals pursuant to Wis. Stat. § 809.32. In his report, counsel identified four issues of arguable merit; notably, counsel did not identify any ineffective assistance of trial counsel. After Johnson failed to respond to the report, the Court of Appeals examined the issues identified in the report and conducted an independent review of the record. The court found no issues of merit and affirmed Johnson's conviction. The Wisconsin Supreme Court later denied Johnson's petition for review.
Johnson then began state collateral attack, filing a motion for post-conviction relief pursuant to Wis. Stat. § 974.06. Johnson raised two new claims: one for ineffective assistance of trial counsel, for various trial errors, and one for ineffective assistance of appellate counsel, for not addressing trial counsel's errors in the no-merit report. The Wisconsin circuit court denied the petition, holding both claims were defaulted because they related to errors by trial counsel and, thus, should have been raised in response to the no-merit report. Johnson appealed, now claiming there was sufficient cause for his failure to respond to the no-merit report, as his appellate counsel did not provide record documents in a timely fashion. The Wisconsin Court of Appeals affirmed, holding that the claims were defaulted and that the failure to provide documents was not a sufficient reason to set aside that default. The Wisconsin Supreme Court again denied review.
Johnson then filed a writ of habeas corpus in the United States District Court for the Eastern District of Wisconsin pursuant to 28 § U.S.C. 2254, claiming ineffective assistance of appellate and trial counsel. The district court found Johnson's claims were not defaulted because the state court ruling was not an adequate and independent procedural ground barring federal review. The court then held that Johnson's claims lacked merit and denied the writ, but granted Johnson a certificate of appealability for both of his ineffective assistance of counsel claims. Johnson timely appealed.
We must first determine whether Johnson's ineffective assistance of counsel claims were procedurally defaulted. The district court held they were not, and we review a determination of procedural default de novo. Holmes v. Hardy, 608 F.3d 963, 967 (7th Cir.2010). If a claim was held to be defaulted by a state court on the basis of an adequate and independent procedural ground, federal habeas review is at an end unless a petitioner can show cause for the default and prejudice attributable thereto. Harris v. Reed, 489 U.S. 255, 262, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989). A state procedural ground is independent if it was expressly relied on by the state court in rejecting the claim, and it is adequate if it is a clearly established and consistently followed state practice at the time it is applied. Ford v. Georgia, 498 U.S. 411, 423-24, 111 S.Ct. 850, 112 L.Ed.2d 935 (1991); Smith v. McKee, 598 F.3d 374, 382 (7th Cir.2010). Procedure applied in an unprincipled, inconsistent, or freakish manner is inadequate and will not preclude federal habeas review.
Barksdale v. Lane, 957 F.2d 379, 382 (7th Cir.1992); Prihoda v. McCaughtry, 910 F.2d 1379, 1383 (7th Cir.1990).
In finding that Johnson's ineffective assistance of counsel claims were not defaulted, the district court relied on our holding in Page v. Frank, 343 F.3d 901 (7th Cir.2003). In Page, a similarly situated Wisconsin prisoner attempted to raise a claim of ineffective assistance of counsel on state collateral attack. The Wisconsin courts held that the claim was defaulted because it was capable of being raised in response to the earlier no-merit report but was not raised at that time. We held that the default was not based on an adequate state ground because of various inconsistencies in Wisconsin's appellate procedure. On one hand, Wisconsin courts held that ineffective assistance of counsel claims were defaulted if they related to trial conduct and were not brought in response to the no-merit report. On the other, the state courts required ineffective assistance claims that dealt with trial errors to be raised in a separate post-conviction motion in the trial court prior to the no-merit appeal or they were waived. In essence, Wisconsin rulings of default were not based on an adequate state ground barring federal habeas review because Wisconsin procedure required the petitioner to travel an inconsistent and confusing path by asserting “a claim before the court of appeals that, under established Wisconsin case law, he could not bring initially in that forum because it had not been brought to the attention of the trial court.” Id. at 909.
Those inconsistencies relevant in Page were also present when Johnson sought Wisconsin state review. To determine whether a state procedural ground is adequate, we assess the ground as it existed when it was applied by the state courts. Ford, 498 U.S. at 424, 111 S.Ct. 850; McKee, 598 F.3d at 382; Franklin v. Gilmore, 188 F.3d 877, 882 (7th Cir.1999). Tellingly, if Johnson had responded to the no-merit report claiming that his appellate counsel was deficient for not addressing trial counsel's errors, he would have been subject to the same Catch-22 that we found dispositive in Page, among other problems. 1
In his brief, respondent urges us to reconsider Page, stating that we have misapprehended Wisconsin appellate procedure, yet he...
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