Johnson v. Kink
| Decision Date | 14 August 2018 |
| Docket Number | No. 17-cv-06217,17-cv-06217 |
| Parties | TERRANCE JOHNSON, R53900, Petitioner, v. KEVIN KINK, Warden, Lawrence Correctional Center, Respondent. |
| Court | U.S. District Court — Northern District of Illinois |
MEMORANDUM OPINION AND ORDER
On August 25, 2017, petitioner Terrance Johnson filed a petition for relief from a state court conviction under 28 U.S.C. 2254. R. 1. The State has moved to dismiss the petition as untimely. R. 10. For the following reasons, the State's motion to dismiss is granted and Johnson's petition is denied.
On July 18, 2001, Zhontele Payne was killed and James Williams was injured in a gang-related, drive-by shooting in Chicago. R. 10-1 at 7. Early in the morning the next day, Johnson was arrested and confessed to the shooting. Id. Following a jury trial, he was convicted of the first-degree murder of Payne and the aggravated batteryof Williams. Johnson was sentenced to consecutive terms of imprisonment of forty-five years for the murder and six years for the aggravated battery. Id.
C. Direct Appeal
Johnson raised six claims on appeal: (1) the trial court erred in failing to suppress his pre-trial confession on right to counsel grounds; (2) the trial court erred by barring his prior attorney from testifying about Johnson's assertion of the right to counsel; (3) defense counsel was ineffective at trial; (4) the prosecutor committed error in his rebuttal during closing arguments; (5) the trial court erred by admitting into evidence William's written statement and grand jury testimony after he recanted at trial; and (6) the mittimus2 must be corrected because it incorrectly listed the number of days Johnson spent in custody. Id. On September 8, 2008, the appellate court affirmed Johnson's conviction but corrected the mittimus. Id. at 20. Johnson filed a petition for leave to appeal in the Illinois Supreme Court, which the Court denied on January 28, 2009. Id. at 22. Johnson did not file a petition for writ of certiorari in the United States Supreme Court.
D. State Post-Conviction Proceedings
On July 31, 2009, Johnson filed a post-conviction petition. He argued that his trial counsel was ineffective and that the admission of his coerced confession deprived him of a fair trial. Id. at 25. On September 25, 2009, the trial court dismissed this petition at the first stage on res judicata grounds, finding Johnson had already raisedthe issues on direct appeal. Id. at 25-26. Johnson filed a notice of appeal on October 26, 2009, which the trial court dismissed as untimely on November 6, 2009. Id. at 23. The trial court's order explained that Johnson could file a "late notice of appeal" before the appellate court. R. 10-1 at 23. But there is no indication from the record that Johnson filed a subsequent late notice of appeal. See id. at 26 (); see also R. 1 at 3.
E. Successive Post-Conviction Petitions
On June 29, 2012, Johnson filed a motion for leave to file a successive post-conviction petition. R. 10-1 at 26. He argued that his initial post-conviction counsel did not provide reasonable assistance because the counsel simply repeated two of the claims Johnson had made on appeal, which were "doomed to immediate failure" on res judicata grounds, and also did not timely file a notice of appeal of the denial of Johnson's initial postconviction petition. Id. The trial court accepted, "[f]or the sake of [Johnson's] petition," his allegations about his ineffective post-conviction counsel as true and found that he demonstrated cause for his failure to bring the claim in his initial post-conviction petition, but that Johnson was nevertheless unable to establish prejudice resulting from that failure. Id. Consequently, on November 29, 2012, the trial court denied Johnson's motion. Id. at 26-27. Johnson filed a notice of appeal from that denial on December 5, 2012. Id.
While Johnson's motion for successive post-conviction petition was pending, Johnson filed a petition for relief pursuant to 735 ILCS 5/2-1401 on November 8,2012, requesting a new trial based on newly discovered evidence. Id. at 27. Specifically, Johnson claimed that his defense counsel had become aware of a prison inmate named Kendrick Butler who identified himself as an eyewitness to the shooting. Butler claimed that an individual named J.R. committed the murder, not Johnson. Id. Johnson supplemented his 2-1401 petition on March 22, 2013 with a letter from Butler, as well as an affidavit attesting to the accuracy of the facts stated in the letter. Butler stated that he had been friends with the victims, and that on the night of the shooting he observed a light-skinned man known as J.R. drive by and shoot the victims. Id. Butler's letter also stated that he was "110% sure it wasn't Terrance Johnson who murdered my friend." Id. Butler explained that he "recently gave my life to Allah/God/Budda/Messia [ ] so I feel I should do the right thing because my conscious [ ] is killing me." Id. Subsequent additions to the letter indicated that Butler was delayed in sending it due to problems obtaining notarization of the accompanying affidavit. On July 2, 2013, the trial court denied Johnson's 2-1401 petition, finding it had been filed beyond the two-year statute of limitations for such petitions. Id. Johnson appealed on July 22, 2013. Id.
On October 30, 2013, the Illinois appellate court consolidated Johnson's appeal from the denial of his motion for leave to file a successive post-conviction petition and his 2-1401 petition for relief. Id. The appellate court affirmed the denial of both petitions on April 29, 2016. Id. at 30. The court held Johnson had failed to demonstrate cause for his failure to bring his successive post-conviction arguments in his initial post-conviction proceedings or prejudice resulting from that failure andthat Johnson's section 2-1401 petition was filed well outside the two-year statute of limitations for such petitions. Id.
Johnson filed a petition for leave to appeal that ruling to the Illinois Supreme Court, which denied his petition on September 28, 2016. Id. at 32. The United States Supreme Court denied Johnson's writ of certiorari on April 3, 2017. Id. at 33.
F. Habeas Petition
Johnson filed this petition for a writ of habeas corpus on August 25, 2017. In his petition, Johnson argues that (1) he received ineffective assistance of counsel due to his counsel's conflict of interest; and (2) he has a free-standing claim of actual innocence based on Butler's letter and affidavit. R. 1 at 5. The State has moved to dismiss his petition as untimely. R. 10. In response, Johnson concedes his petition is untimely, but asks that equitable tolling be applied. R. 13 at 2. He also argues he is entitled to the actual innocence exception. Id. at 6.
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a "1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court." 28 U.S.C. § 2244(d)(1). Relevant here, the limitation period begins on the date after the conclusion of direct review or the expiration of the time for seeking such review. See 28 U.S.C. § 2244(d)(1)(A). The time during which a post-conviction petition is pending, however, is not counted toward the limitation period. 28 U.S.C. § 2244(d)(2).
The Illinois Supreme Court denied Johnson's petition for leave to appeal his conviction on January 28, 2009. R. 10-1 at 22. Johnson's opportunity to file a petition for a writ of certiorari in the United States Supreme Court expired ninety days later, on April 28, 2009. See Sup. Ct. R. 13. Thus, the one-year period of limitation for purposes of the AEDPA began to run on April 29, 2009. See Gonzalez v. Thaler, 565 U.S. 134, 150 (2012); Anderson v. Litscher, 281 F.3d 672, 674 (7th Cir. 2002) ( ).
Johnson submitted his first state post-conviction petition on July 31, 2009. As of that date, 93 days of the one-year limitations period had elapsed. Under 28 U.S.C. § 2244(d)(2), the limitations period is tolled for "[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending." Johnson's post-conviction petition was dismissed on September 25, 2009. His opportunity to file a notice of appeal expired on October 25, 2009, and his one-year limitations period restarted after that date. Ill. Sup. Ct. R. 606(b) (); Randall v. Duncan, 244 F. Supp. 3d 782, 785 (N.D. Ill. 2016) (). On October 26, 2009, Johnson thus had 272 days remaining, until July 24,2010, to file his habeas petition. Johnson did not file this habeas petition until August 25, 2017.
Johnson's late notice of appeal from his post-conviction petition filed on October 26, 2009 does not toll the limitations period because only "properly filed" applications toll the limitations period. 28 U.S.C. § 2244(d)(2). An application is "properly filed" when "its delivery and acceptance are in compliance with the applicable laws and rules governing filings." Artuz v. Bennett, 531 U.S. 4, 8 (2000). Such rules governing filings include "the form of the document, the time limits upon its delivery, the court and office in which it must be lodged, and the requisite...
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