Johnson v. Foster

• Decision Date: 06 May 2015
• Docket Number: No. 13–2008.,13–2008.
• Citation: 786 F.3d 501
• Parties: Steven D. JOHNSON, Petitioner–Appellant, v. Brian FOSTER, Respondent–Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

786 F.3d 501

Steven D. JOHNSON, Petitioner–Appellant

v.Brian FOSTER, Respondent–Appellee.

No. 13–2008.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 12, 2014.

Decided May 6, 2015.

Phoebe N. Coddington, Attorney, Winston & Strawn LLP, Charlotte, NC, Thomas M. Dunham, Attorney, Winston & Strawn LLP, Washington, DC, for Petitioner–Appellant.

William L. Gansner, Attorney, Office of the Attorney General Wisconsin Department of Justice, Madison, WI, for Respondent–Appellee.

Before EASTERBROOK, SYKES, and TINDER, Circuit Judges.

Opinion

SYKES, Circuit Judge.

A jury convicted Steven Johnson of several state gun crimes arising out of a shootout in Milwaukee. He challenged his convictions in a state post-conviction motion, but the trial court denied the motion and the state court of appeals affirmed. Johnson had 30 days to petition for review by the Wisconsin Supreme Court. He applied for a loan from the prison Business Office to help cover the cost of the paper, photocopying, and postage necessary to file the petition; Wisconsin law permits inmates to borrow up to $100 annually for that purpose. The Business Office denied his request, but Johnson contends that he met the eligibility requirements and the loan was unlawfully denied.

Johnson never filed a petition for review in the state supreme court. Instead, he sought federal habeas relief under 28 U.S.C. § 2254. Federal courts are normally precluded from reviewing the habeas claims of state prisoners who procedurally default their claims by failing to present them through one full round of state-court review. A default can be excused, however, if the prisoner shows that prison officials interfered with his ability to comply with the state court's procedural rules.

Johnson argues that the wrongful denial of his loan request should excuse his failure to petition the state supreme court for review.

The district court rejected this argument, and we affirm. Johnson has not established that the denial of his loan application was an objective, external impediment to his ability to comply with the state court's procedural rules or that it actually prevented him from petitioning for review in the Wisconsin Supreme Court. Moreover, Johnson's argument rests on his contention that the Business Office misinterpreted or misapplied prison policies governing the loan program. No state court has ruled on that question. For a federal habeas court to excuse a procedural default based on its own interpretation of a state prison policy—without guidance from the state courts—would be starkly contrary to the principles of federalism and comity that constrain all federal habeas review.

I. Background

On November 8, 2007, Steven Johnson exchanged gunfire with his ex-girlfriend's brother-in-law in the parking lot of a Milwaukee-area Family Dollar store. He was charged with four gun crimes under Wisconsin law. A jury found him guilty on all counts, and he was sentenced to 22 years in prison.

Johnson alleges in his federal habeas petition that two constitutional violations occurred during his state-court proceedings: First, the court refused to continue the preliminary hearing in order to give him time to hire the lawyer of his choice, and later it denied his multiple requests to represent himself.

Johnson attempted to raise these and other claims in a direct appeal. Because his filing was untimely, however, the trial court construed it as a motion for postconviction relief under section 974.06 of the Wisconsin Statutes and denied it. Johnson timely appealed that ruling to the Wisconsin Court of Appeals.

The appeal remained pending for well over two years. At some point Johnson sought reinstatement of his direct appeal rights but that motion was denied. In December 2011, while his appeal was still pending, he filed a premature § 2254 petition in federal district court seeking habeas review. On April 19, 2012, before the federal court took up his habeas petition, the Wisconsin Court of Appeals affirmed the denial of his postconviction motion. Johnson had 30 days from that date to petition the Wisconsin Supreme Court for review of the appellate court's decision. See Wis. Stat. §§ 808.10(1), 809.62(1m).

In early May 2012, Johnson applied for a loan from the prison Business Office under a state program that permits loans of up to $100 per year to assist prisoners in paying for the paper, photocopying, and postage needed to file legal documents. See Wis. Admin. Code Doc § 309.51(1) ; Wis. Stat. § 301.328(1m). Johnson had used the loan program earlier that year, but this time his application was rejected. When Johnson asked for an explanation, the Business Office promptly responded as follows:

A review of your income and expenditures shows that you had deposits of $55.00 and canteen expenditures of $17.90 over the last 60 days. The canteen purchases were primarily junk food. These funds could and should have been used to meet your legal needs.

We will reconsider your request to reinstate your legal loan at a future date. In the meantime, you may take advantage of the free weekly envelope/mailing for those who qualify.

Johnson doesn't dispute the Business Office's numbers, but he says that all the money not spent at the canteen was automatically withheld to pay for mandatory fees and outstanding debts, including the principal on his prior legal loans.¹

Johnson never filed a petition for review in the Wisconsin Supreme Court. Accordingly, the district court denied his § 2254 petition based on procedural default—his failure to complete one full round of state-court review. The court concluded that the procedural default was not excused by the Business Office's rejection of Johnson's loan request because he had no legal entitlement to a loan and the Business Office provided a rational reason for the denial. The court entered final judgment dismissing the habeas petition and denied a certificate of appealability.

Johnson filed a notice of appeal. A motions judge of this court construed the notice as a request for a certificate of appealability and authorized an appeal on the two constitutional claims mentioned above. The order also instructed the parties to address the issue of procedural default.²

II. Discussion

The first and ultimately dispositive question is whether Johnson's procedural default may be excused. We review the district court's ruling on that issue de novo. Miller v. Smith, 765 F.3d 754, 764 (7th Cir.2014).

Federalism and comity principles pervade federal habeas jurisprudence. One of these principles is that “in a federal system, the States should have the first opportunity to address and correct alleged violations of [a] state prisoner's federal rights.” Coleman v. Thompson, 501 U.S. 722, 731, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). To protect the primary role of state courts in remedying alleged constitutional errors in state criminal proceedings, federal courts will not review a habeas petition unless the prisoner has fairly presented his claims “throughout at least one complete round of state-court review, whether on direct appeal of his conviction or in post-conviction proceedings.” Richardson v. Lemke, 745 F.3d 258, 268 (7th Cir.2014) ; 28 U.S.C. § 2254(b)(1). This requirement has two components: the petitioner's claims must be exhausted, meaning that there is no remaining state court with jurisdiction, and the exhaustion must not be attributable to the petitioner's failure to comply with the state court system's procedural rules. “In habeas, the sanction for failing to exhaust properly (preclusion of review in federal court) is given the separate name of procedural default....” Woodford v. Ngo, 548 U.S. 81, 92, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006) (internal quotation marks omitted).

Procedural default is one application of the “adequate and independent state ground” doctrine: “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.”³ Richardson, 745 F.3d at 268 (quotation marks omitted). The violation of a state court's procedural rules is an adequate and independent state-law basis for denying a petitioner's requested relief. Therefore, a habeas petitioner who has procedurally defaulted in state court—and thus has not fairly presented those claims through one complete round of state-court review—cannot have his defaulted claims heard in federal court. In this way, federalism and comity principles protect the integrity of a state court system's procedural rules and ensure that the state judiciary has the first opportunity to correct constitutional errors. See Lambrix v. Singletary, 520 U.S. 518, 525, 117 S.Ct. 1517, 137 L.Ed.2d 771 (1997) (“A State's procedural rules are of vital importance to the orderly administration of its criminal courts; when a federal court permits them to be readily evaded, it undermines the criminal justice system.”).

As we've noted, Johnson's direct appeal was deemed untimely, so the state trial court construed the filing as a post-conviction motion and denied it. Johnson appealed, and on April 19, 2012, the Wisconsin Court of Appeals affirmed. Under the state court's procedural rules, Johnson had 30 days from that date to petition the Wisconsin Supreme Court for review. See Wis. Stat. §§ 808.10(1), 809.62. Johnson never filed a petition for review and cannot do so now. Thus, although he has exhausted review in the state courts (in the sense that the doors of the Wisconsin Supreme Court are no longer open to him), his claims are procedurally defaulted because the exhaustion resulted from his own failure to comply with state procedural rules. Johnson concedes as much but argues that his default should be excused.

A federal court may excuse a procedural default if the habeas petitioner establishes that (1) there was good cause for the default and consequent prejudice, see Murray v. Carrier, 477 U.S. 478,...