In the

United States Court of Appeals

For the Seventh Circuit

No. 19-1904

ALBERT KIRKMAN,

Petitioner-Appellant,

v.

SCOTT THOMPSON,

Respondent-Appellee.

Appeal from the United States District Court for the 

Northern District of Illinois, Eastern Division.

No. 14 C 02398 — Thomas M. Durkin, Judge.

ARGUED JANUARY 15, 2020 — DECIDED MAY 7, 2020

BeforeBAUER,EASTERBROOK,and HAMILTON, Circuit Judges.

BAUER, Circuit Judge. Albert Kirkman (“Kirkman”) was

arrested and charged with the murders of two men and

attempted murder of a third, Willie Johnson (“Johnson”). At

trial, Johnson testified that Kirkman and his accomplice were

the shooters. Kirkman was convicted and appealed his sentence. Fifteen years later, Johnson recanted his testimony and
2 No. 19-1904

Kirkman again appealed his sentence. The Illinois Circuit

Court (“circuit court”) held an evidentiary hearing and found

Johnson’s recanted testimony not credible. The Illinois Appellate Court affirmed. Kirkman then filed an action with the

Northern District of Illinois, which denied his petition for

habeas corpus relief and for the following reasons, we affirm.

I. BACKGROUND

On April 21, 1992, a fight broke out among various individuals involving Johnson, who was soon assisted by Cedric

Herron and Sammie Walker, breaking up the altercation. Later

that night, two shooters shot Johnson, Herron, and Walker,

and only Johnson survived. While in the hospital, Johnson

described the events to detectives including describing the

shooters, identifying one by the street name “Duke,” where

Duke lived, and the car Duke drove. Later that day, detectives

presented Johnson with a photo array and Johnson identified

Duke and his accomplice. Police pulled over a vehicle matching Johnson’s description and arrested the driver, Kirkman,

and the passenger, who matched the general description of the

second shooter, Cedric Cal. Kirkman denied having a street

name but stated he “had a tattoo of Duke on his left arm.”

Police took additional photos and presented a second photo

array to Johnson, who identified them as the shooters. 

At trial, Johnson identified Kirkman and Cal as the shooters

that had been part of the earlier altercation. On cross-examination, he denied that the altercation involved a drug dispute and

maintained the fight started when he confronted another

man, Keith Ford, about his sister, Latanya Johnson. Johnson’s

girlfriend, Latrese Buford testified forthe defense. She testified
No. 19-1904 3

the altercation was over a drug sale and that Herron was

infringing on Ford’s turf. She heard but did not witness the

gunshots later that evening. The jury found Kirkman guilty of

murder and aggravated battery with a firearm. Kirkman was

sentenced to life in prison without parole.

Johnson had a change of heart and submitted an affidavit

identifying Keith Ford and an unknown man as the shooters.

He stated that Kirkman and Cal sold drugs in front of his

house the day before the shooting and he confronted and

robbed them. He indicated Kirkman and Cal were his enemies

and he had falsely identified them because he was afraid of

Ford. Johnson testified that he and his family received threatening calls.

At Kirkman’s post-conviction hearing, Johnson testified

that his affidavit was true and the circuit court questioned

him about his change of heart. Buford also testified at the

hearing, but her testimony was inconsistent with Johnson’s.

For example, Johnson told her the shooters were Kirkman and

Cal in the emergency room, she did not see Johnson receive

any telephone calls in the emergency room and testified no

telephones were in the emergency room, only in the admitted

hospital room. The State’s Attorney Investigator also testified

that when she interviewed Johnson in 2010, his information

matched that of his affidavit but did not exclude Kirkman

or Cal as the unknown second shooter. 

The circuit court denied the petition for post-conviction

relief, finding that Johnson’s recantation lacked credibility. Not

only did his testimony present conflicting accounts of that
4 No. 19-1904

night, but also the emergency room where he testified to

receiving calls lacked a telephone.

On appeal, the Illinois Appellate Court affirmed on all

grounds, finding the recantation unreliable because it contained inconsistencies and was implausible. Johnson later

pleaded guilty for perjury, but failed to specify which statement was false. 

Kirkman brought a federal due process claim, claiming his

conviction was based solely on Johnson’s unreliable testimony,

his recantation was credible, that the state court made an

unreasonable determination of fact, and the clear and compelling evidence of Kirkman’s innocence affords him habeas

corpus relief.

II. DISCUSSION

We review the district court’s denial of a habeas petition

de novo. Berry v. Knight, 770 Fed. Appx. 265, 266 (7th Cir. 2019). 

Habeas relief may only be granted if the state court’s

decision was “contrary to, or involved an unreasonable

application of, clearly established Federal Law, as determined

by the Supreme Court of the United States; or ... based on an

unreasonable determination of the facts in light of the evidence

presented in the State court proceeding.” 28 U.S.C. § 2254(d);

see also Shoop v. Hill, 139 S.Ct. 504, 506 (2019). A decision is

reasonable if “‘fairminded jurists could disagree’ on the

correctness of the state court’s decision.” Harrington v. Richter,

562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541 U.S.

652, 664 (2004)). A state court’s factual determination is
No. 19-1904 5

presumed correct and the petitioner must rebut the presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

In light of the evidence presented in the circuit court’s

evidentiary hearing, the circuit court made a reasonable

determination of fact in finding Johnson’s recanted testimony

not credible. This factual determination is presumed correct

unless rebutted by clear and convincing evidence. Here,

Kirkman fails to show clear and convincing evidence that the

recantation fifteen years after the trial is true. Further, he

concedes that no evidence exists to show that the State was

aware of the claimed perjury.

Furthermore, the Illinois Appellate Court held that the

circuit court properly considered six factors in assessing the

credibility of Johnson’s recantation: “(1) the recantations’

internal consistency and inherent plausibility; (2) the plausibility of the recanter’s motive for perjuring himself at trial; (3) the

plausibility of the recanter’s motive for stepping forward now;

(4) whether the recantation is against his interest; (5) the

importance of the recanted testimony to the original guilty

verdict; and(6) whether other evidence supports or contradicts

the recantation.” People v. Kirkman, 2013 IL App (1st) 112362-U,

¶13 (Ill. App. Ct. 2013) (unpublished decision) (internal

citations omitted). The Illinois Appellate Court also found that,

along with these factors, the circuit court observed Johnson’s

demeanor and “concluded that the new evidence was not

material and would probably not change the result on trial.” Id.

at ¶14. The Illinois Appellate Court affirmed the circuit court’s

finding that “Johnson’s recantation was not credible because:

(1) Johnson’s recantation was internally inconsistent and

implausible; (2) Johnson had no motivation to lie at trial; and
6 No. 19-1904

(3) Johnson recanted out of allegiance to the Vice Lords and not

out of reasons related to justice.” Id. at 17. The circuit court’s

determination was not unreasonable in light of the evidence.

See Morgan v. Hardy, 663 F.3d 790, 798 (7th Cir. 2011) (affirming

denial of habeas relief where state courts reasonably foundthat

key prosecution witness’s recantation of trial testimony was

not credible). 

Kirkman also claims clear and compelling evidence of his

actual innocence exists. Our system begins with a presumption

of innocence that continues until a defendant “has been

afforded a fair trial and convicted of the offense for which he

was charged, [then] the presumptionofinnocencedisappears.”

Herrera v. Collins, 506 U.S. 390, 399 (1993). The prosecution met

its burden beyond a reasonable doubt and Kirkman comes to

us “as one who has been convicted by due process of law.” Id.

at 400. While Illinois allow motions for a new trial, the circuit

court is the proper venue to decide this claim. In 2011, the

circuit court conducted the evidentiary hearing and concluded

the recantation was not credible and a new trial was not

warranted. The appellate court affirmed this decision. That

creates a non-cognizable issue of state law, so we move on to

consider Kirkman’s due process claims. 

Kirkman argues his due process rights were violated

because his conviction was based on recanted and perjured

trial testimony. Kirkman claims that his conviction rests solely

on Johnson’s testimonial evidence, which has been “credibly

and consistently” recanted. While Johnson may adhere to his

recantation, his credibility and consistency remain in dispute.

When trying the case, the prosecution had no reason to know

or suspect Johnson’s testimony was anything other than
No. 19-1904 7

truthful. Napue v. Illinois, 360 U.S. 264, 269 (1959). Even if the

recantation passed muster with the state courts, perjured

testimony unknowingly presented does not violate due

process. 

The circuit court, as affirmed by the Illinois Appellate

Court, found Johnson’s recantation lacked credibility. Its

evidentiary hearing satisfied Kirkman’s due process rights.

Kirkman fails to overcome this finding with clear and convincing evidence. We agree with the district court that the circuit

court’s determination, as affirmed in appellate review, defeats

Kirkman’s innocence and perjured testimony claims.

III. CONCLUSION

For the foregoing reasons, we AFFIRM the district court's

decision to deny habeas corpus relief.