Johnson v. Butler
| Decision Date | 02 October 2019 |
| Docket Number | Case No. 16 C 6741 |
| Parties | Kenneth D. Johnson, (M34606), Petitioner, v. Kimberly Butler, Warden, Menard Correctional Center, Respondent. |
| Court | U.S. District Court — Northern District of Illinois |
MEMORANDUM OPINION AND ORDER
Petitioner Kenneth D. Johnson, a prisoner incarcerated at the Stateville Correctional Center, brings this pro se amended habeas corpus action pursuant to 28 U.S.C. § 2254 challenging his 2011 double murder conviction from the Circuit Court of Cook County. For the reasons set forth below, the Court denies the petition on the merits, and declines to issue a certificate of appealability.
The Court draws the following factual history from the state court record. (Dkt. 25.) State court factual findings are presumed correct, and Johnson has the burden of rebutting the presumption by clear and convincing evidence. Brumfield v. Cain, 135 S. Ct. 2269, 2282 n.8 (2015) (citing 28 U.S.C. § 2254(e)(1)). Johnson has not made such a showing.
Following a jury trial, Johnson was found guilty of shooting two men at a carwash in Chicago's South Austin neighborhood. Illinois v. Johnson, 2014 IL App (1st) 132036-U, 2014 WL 4243315, at *1 (Ill. App. Ct. 2014). The shootings occurred on February 13, 2009, around 8:00 p.m. A number of people were present in the carwash and surrounding area on the street. Several eyewitnesses identified Johnson as the shooter during his trial.
The eyewitnesses testified to four additional relevant points. First, the eyewitnesses gave varying heights for the shooter of 5'7", 5'8", 5"11', and 6'2". Second, the shooter walked with a limp. Third, the shooter was observed standing on the hood of a car inside the carwash shooting at one of the victims, (and police investigators recovered a footprint via the use of gel lifts from the hood of the car). Fourth, the shooter was seen fleeing the scene in a green Buick Regal. A witness reported the license plate number of the getaway car to the police and police discovered that the car was registered to Johnson. The police later located the car on March 27, 2009, a month and half after the shooting. The car's interior was burned from the inside out, and the license plates were removed, however, the car's VIN number remained intact in the vehicle allowing its identification.
Johnson was arrested on March 17, 2009, at his son's home. The police also seized three pairs of Timberland brand boots during the arrest. An Illinois State Police Crime Lab forensic scientist compared the boots to the footprint recovered from the hood of the car. The boots, which ranged in sizes from nine to nine and a half, were consistent in pattern, design, and size to the shoe print recovered at the crime scene. The forensic scientist, however, could not definitively link the seized Timberland boots to the recovered print because the quality of the gel print was poor. Id.
Johnson testified on his own behalf at trial. He explained he was shot, two and a half months before the car wash shooting, on December 1, 2008, while driving his car with his daughter. He did not know who shot him in December 2008, did not know either of the car washshooting victims from February 2009, and had no reason to suspect that they were involved with his shooting. He further explained he was only 5'4" tall and wore size seven and a half shoes. Id.
Although Johnson was shot while driving the green Buick Regal back on December 1, 2008, he explained he no longer used it at the time of the second shooting, instead allowing his cousin, Ted Brown, to drive it. The car was sold sometime between the car wash shooting on February 13, 2009, and his arrest on March 17, 2009, but Johnson denied personally selling the car.
Johnson further explained that he could not jog or run with a limp following his shooting in December 2008. This was relevant because some of the eyewitnesses who identified Johnson as the shooter said they saw him jogging during the February 13th shootings. An orthopedic surgeon testified as an expert on Johnson's behalf regarding his medical condition. The expert reviewed Johnson's medical records and explained that Johnson was struck in the abdomen and hip during his December 2008 shooting. The expert opined that Johnson would be unable to jog with his injuries and would likely have walked with a significant abnormality in his gait if he tried to move at a fast rate. Id.
Johnson's mother testified on his behalf. She saw him multiple times a week in January and February 2009 and explained that Johnson always used crutches to walk during that period while he was recovering from his December 2008 gunshot injuries. Johnson's mother confirmed that Johnson did not drive his car following the December 2008 shooting, and that Johnson's cousin drove the car when Johnson was not using it. The mother added that Johnson stood only 5'4" tall, but that Johnson's 27-year-old son, was between 5'7" and 5'8".
Johnson provided two alibi witnesses. The first, Michael McGee, testified that Johnson was with him between 11:00 a.m. and 8:30 p.m. on February 13, 2009, when the murders occurred. Additionally, Johnson's brother testified that Johnson was with him from 8:30 p.m. until 9:00 p.m. that evening. Both men testified that Johnson was not near the car wash that day.
The jury found Johnson guilty of two counts of murder and the trial court sentenced him to a mandatory term of life imprisonment. The Illinois Appellate Court affirmed Johnson's conviction on direct appeal.
Johnson initiated the present habeas corpus proceeding following the completion of his direct appeal. He also sought to stay these proceedings so that he could bring a state postconviction petition. Johnson's stay motion asserted that he had hired attorney Charles K. Piet to represent him in the postconviction matter. The Court granted the stay request and instructed the parties to file regular status reports on the pending postconviction proceedings.
On February 3, 2017, approximately three months after this case was stayed, Respondent's counsel, an assistant attorney general from the Office of the Illinois Attorney General, filed a status report explaining that the Circuit Court of Cook County had no record of a postconviction petition filed by Johnson. Three weeks later, on February 24, 2017, Respondent's counsel filed a follow up status report stating she spoke to Mr. Piet via the telephone that day. According to the status report, Mr. Piet related to Respondent's counsel that he (Piet) "had been hired by Johnson's family to review Johnson's case, [but that] he was never retained to file a postconviction petition on Johnson's behalf and did not do so."
The Court entered a minute order on February 24, 2017, ordering Johnson (who was prose in this Court) to file a written status report detailing the status of his postconviction petition proceedings. The Court's order warned Johnson that failure to comply with its order would result in dismissal of the case. The Court also set the case for status on March 30, 2017.
Johnson did not file a status report prior to the March 30th status hearing, but he did file an amended habeas corpus petition. At the March 30th status hearing, the Court ordered the stay lifted and Respondent to answer or otherwise respond to the habeas corpus petition.
Several weeks later, on April 25, 2017, Johnson filed a response regarding Respondent's representations in the February 24th status report as to Attorney Piet. Johnson explained that this was a "complete surprise," as "Petitioner's family paid counsel [Piet] initial attorney fees to represent Petitioner in the postconviction proceedings. . . ." Further, Johnson explained he previously wrote to Piet out of concern of the statute of limitations governing state postconviction petitions, 725 ILCS § 5/122-1(c).
Johnson also submitted a letter dated May 27, 2016, from Piet to Johnson written in response to a prior letter from Johnson to Piet. (Dkt. 23, pg. 4.) Piet addressed Johnson's questions regarding the statute of limitations for a postconviction petition, and also whether Piet believed Johnson had a valid ineffective assistance of counsel claim. Id. Piet further raised a lack of cooperation from Johnson's family regarding Piet's payment for Petitioner's representation, and providing promised eyewitnesses regarding the case. Id. In the closing of his letter to Johnson, Piet stated, Id. Johnson would later inform theCourt that he had a new private attorney, Mr. Dean Morask, representing him in matters before the state court. (Dkt. 30.) Johnson has never provided any information suggesting that he ever filed a postconviction petition in state court.
The amended habeas corpus petition alleges: (1) ineffective assistance of trial counsel regarding counsel's closing argument; (2) ineffective assistance of trial counsel for failing to call expert witnesses regarding his height and shoe size, and failing to challenge the prosecution's expert; id. at 5, 10-11, (3) prosecutorial misconduct through misstatement of evidence, improper attacks on Johnson's character, and improper and inflammatory remarks; id. at 6, (4) ineffective assistance of trial counsel for failing to consult an expert in preparation of Johnson's defense; id. at 6, 12-15; (5) ineffective assistance of trial counsel for failing to obtain an expert regarding Johnson's height; id. at 6, 15-19; (6) ineffective assistance of trial counsel for failing to investigate a Fourth Amendment challenge to the...
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