warranting appeal. See Resp.’s Answer Ex. A. Johnson filed a response to appellate counsel’s
motion to withdraw, raising the following issues: (1) the arresting officers used coercive tactics and
failed to advise Johnson of his right to counsel under Miranda; (2) his statements were involuntary;
(3) the State failed to prove guilt beyond a reasonable doubt; (4) ineffective assistance of counsel;
(5) the trial court coerced him into pleading guilty; (6) his sentence was based on fabricated evidence
of a prior conviction; (7) the trial court failed to consider his potential for rehabilitation; and (8) the
infant’s injuries were not permanent. See Resp.’s Answer Ex. B. The Illinois Appellate Court
granted appellate counsel’s motion to withdraw, and on May 31, 2000, affirmed Johnson’s sentence
and conviction. See Resp.’s Answer Ex. C.

Johnson then filed a petition for leave to appeal to the Illinois Supreme Court, raising the
same issues as raised before the Illinois Appeflate Court. See Resp.’s Answer Ex. D. On January
29, 2001, the Illinois Supreme Court denied Johnson’s petition for leave to appeal. See Resp.’s
Answer, Ex. E.

Johnson filed his petition seeking a writ of habeas corpus, brought pursuant to 28 U.S.C. §
2254, in the federal district court on February 4, 2002, within the one-year deadline provided by 28
U.S.C. § 2244(d)(1).2_ Inhis petition, Johnson raised the following issues, which were raised before
both the Illinois Appellate Court and Illinois Supreme Court: (1) his sentence was based on
fabricated evidence of a prior conviction; (2) the arresting officers used coercive tactics and failed

to advise Johnson of his right to counsel under Miranda; (3) ineffective assistance of counsel; (4) the

> In his petition, Johnson states that his petition was “filed timely under ‘Houston v. Lack’.” Johnson §
2254 Pet., at 1. In Houston v, Lack, 487 U.S. 266, 276 (1988), the Supreme Court held that a prisoner files his
notice of appeal at the time he delivers it to prison authorities for forwarding to the court. The Seventh Circuit has
assumed, without deciding, that the Houston “mailbox rule” extends to other pro se prisoner filings, including habeas
petitions. See Jones v. Bertrand, 171 F.3d 499, 501-02 (7th Cir. 1999) (applying Houston’s “mailbox rule” to a
petition for habeas corpus).



2. Claims Raising No Constitutional Issue

The remaining claims raised in Johnson’s petition are not cognizable under § 2254, which
requires that petitioner be “in custody in violation of the Constitution or law or treaties of the United
States.” 28 U.S.C. § 2254(a). These claims relates to the sentence imposed by the trial court, and
do not raise any Constitutional issues.

“As a general rule, a federal court will not review state sentencing determinations that fall

within statutory limits.” Williams v. Duckworth, 738 F.2d 828, 831 (7th Cir. 1994) (citing Solem
y. Helm, 463 U.S. 277 (1983); Rummel v. Estelle, 445 U.S. 263 (1980)). Johnson pled guilty to the
offense of aggravated battery of a child, a class X felony under Illinois law. See 720 Ill. Comp. Stat.
5/12-4.3 (West 1997). Johnson received a sentence of twenty-six years, which is within the statutory
range of six to thirty years. See 730 Ill. Comp. Stat. 5/5-8-1(a)(3) (West 1997). In his petition,
Johnson simply disagrees with the sentence he received and the trial court’s finding concerning the
extent of the infant’s injuries. Johnson does not allege a violation of a Constitutional right, and as
such, his claims are not cognizable by way of federal habeas corpus review.

Even if the court were to liberally construe Johnson’s claims to raise an Eighth Amendment

sees

argument that his sentence was grossly disproportionate to the crime, “‘in non-capital felony
convictions, a particular offense that falls within legislatively prescribed limits will not be considered
disproportionate unless the sentencing judge has abused his discretion.’”” Henry v. Page, 223 F.3d
477, 482 (7th Cir. 2000) (quoting United States v. Vasquez, 966 F.2d 254, 261 (7th Cir. 1992)). The
sentence in this case was within the boundaries established by the Illinois legislature, and nothing

in this case justifies an exception to the rule of limited review of state sentencing determinations;

therefore, these claims are not cognizable in a habeas petition.


not apply or unreasonably refuses to extend that principle to a new context where it should apply.”
Id. In order for a state court decision to be considered “unreasonable” under this standard it must
be more than incorrect, it must lie “well outside the boundaries of permissible differences of
opinion.” Hardaway v. Young, 302 F.3d 757, 762 (7th Cir. 2002); see also Schultz v. Page, 313 F.3d
1010, 1015 (7th Cir. 2002) (“The state court decision is reasonable if it is minimally consistent with
the facts and circumstances of the case.”).

Before reviewing the Illinois courts’ decisions, however, the court must determine whether
Johnson fairly presented his federal claims to the state courts. Section 2254 requires a habeas
petitioner to exhaust the remedies available in state court prior to pursuing federal habeas relief. See
28 U.S.C. § 2254(b)(1)(A). Any claim not presented to the state’s highest court is deemed
procedurally defaulted. See O’Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999) (indicating that
“a petition for discretionary review in Illinois’ Supreme Court is a normal, simple, and established
part of the State’s appellate review process”).

In addition to exhausting the remedies available in state court, a habeas petitioner is
procedurally barred from raising claims in a federal habeas court that he did not raise in the state
court proceedings. See O’Sullivan, 526 U.S. at 848 (holding that a petitioner’s failure to present
three claims to the Illinois Supreme Court for discretionary review resulted in a procedural default
of those claims). Fair presentment of a constitutional claim requires a habeas petitioner to present
both the operative facts and the controlling legal principles to the state court before bringing the
claims to a federal habeas court. Cf, Rodriguez v. Scillia, 193 F.3d 913, 916 (7th Cir. 1999)
(discussing exhaustion of claim) (citing Picard v. Connor, 404 U.S. 270, 277 (1971)). Thus, a

habeas petitioner procedurally defaults, or waives, any claim raised for the first time in federal court.


infant’s injuries were not permanent; and (5) the trial court coerced him into pleading guilty. On
April 26, 2002, Respondent filed an answer to the § 2254 petition, arguing that Johnson’s claims are
procedurally defaulted or not cognizable on habeas review.
Il. ANALYSIS
A, Standard of Decision
Johnson’s petition is governed by 28 U.S.C. § 2254(d), as amended by the Antiterrorism and
Effective Death Penalty Act (‘AEDPA”), which sets a high hurdle for habeas relief. The statute
states:
(d) An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted with respect to any
claim that was adjudicated on the merits in State court proceedings unless the
adjudication of the claim -
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was 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). A state court’s decision is contrary to clearly established Supreme Court
precedent “if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court
on a question of law” or “if the state court confronts facts that are materially indistinguishable from
arelevant Supreme Court precedent and arrives at a result opposite to [it].” Williams v. Taylor, 529
U.S. 362, 405 (2000). A state court’s decision is an unreasonable application of clearly established
Supreme Court law “if the state court identifies the correct governing legal rule from this Court’s

cases but unreasonably applies it to the facts of a particular prisoner’s case” or “if the state court

either unreasonably extends a legal principle from our precedent to a new context where it should


Anderson vy. Cowen, 227 F.3d 893, 899 (7th Cir. 2000).
B. Johnson’s Arguments

I. Procedurally Defaulted Claims

The Illinois Appellate Court reviewed Johnson’s claims of Miranda violations, ineffective
assistance of counsel, and that the trial court coerced him into pleading guilty, finding that, under
Iinois law, he had waived such claims by failing to include them in his post-trial motion. See
Resp.’s Answer, Ex. C (citing Ill. S.Ct. R. 604(d)). Because waiver is an independent and adequate
state ground and Johnson offers no explanation for this procedural default, the court cannot review
these specific claims. See Stewart, 536 U.S. at 860; Wright, 288 F.3d at 947 (waiver is an
independent and adequate state ground in Illinois).

Further, Johnson does not attempt to establish cause and prejudice for failing to raise these
claims in his post-trial motion in the Circuit Court of Cook County so as to allow the court to review
these claims. See Edwards, 529 U.S. at 450-52. As such, the court is prohibited from considering
the merits of Johnson’s claim unless he can demonstrate a sufficient probability that our failure to
review his federal claim will result in a fundamental miscarriage of justice. See id.; see also Gomez
y. Jaimet, 350 F.3d 673, 679 (7th Cir. 2003) (“The fundamental-miscarriage-of-justice exception
applies only in the ‘extremely rare’ and ‘extraordinary case’ where the petitioner is actually innocent
of the crime for which he is imprisoned.”) (quoting Schlup v. Delo, 513 U.S. 298 (1995)). Similarly,
Johnson makes no claim that failure to review his federal claim will result in a fundamental

miscarriage of justice. Therefore, the court is prohibited from considering the merits of these claims.


¢ Order Form (06/97)

LG nited States District Court, Northern District of Iinois

sameet Guus iter | Charles R.Norgle, St. | Singer
ZTASE NUMBER 02 C 863 DATE 9/17/2004

CASE Johnson v. Chandler

TITLE

[In the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintif¥, and (b) state briefly the nature
SOTION: ofthe motion being presented]
Gregory Johnson’s § 2254 Petition

YOCKET ENTRY:
1) a Filed motion of [ use listing in “Motion” box above.]
2) Q Brief in support of motion due __.
3) g Answer brief to motion due. . Reply to answer brief. due.
4) Oo Ruling/Hearing on setfor at
5) g Status hearing[held/continued to] [set for/re-set for]on__—setfor__—_att
6) a Pretrial conference[held/continued to) [set for/re-set for]on se setfor_— ss at_.
i) Oo Trial[set for/re-set for]on at.
(8) og [Bench/Jury trial] [Hearing] held/continuedto at
(9) a This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to)

OFRCP4(m) OLocal Rule 41.1 OFRCP4i(@)(1)  FRCP41(a)(2).

ao) «6 [Other docket entry} Gregory Johnson’s petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254 is denied. Case terminated. See attached.

0 Gite ge

(¢8)) @ [For further detail see order attached to the original minute order.]

‘No notices required, advised in open court.

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Ill. CONCLUSION
For the foregoing reasons, Gregory Johnson’s petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254 is denied.

IT IS SO ORDERED

CHARLES RONALD NORGLEfJudge
United States District Court

DATED: i 7 Lor

10


Also, federal habeas courts cannot review claims that the state court has disposed of on state
law grounds. See Stewart v. Smith, 536 U.S. 846, 860 (2002); see also Lambrix v. Singletary, 520
U.S, 518, 523-24 (1997) (noting that where “the state law determination is sufficient to sustain the
decree, any opinion . . . on the federal question would be purely advisory”) (citing Herb v. Pitcairn,
324 U.S. 117, 125-26 (1945)). Put another way, federal habeas relief is not available if the state
court decision rests on state law that “is independent of the federal question and adequate to support
the judgment.” See Coleman v, Thompson, 501 U.S. 722, 729 (1991). For example, waiver under
state law is an independent and adequate state law ground for dismissal that can preclude federal
habeas relief. Thus, when a state court determines that a habeas petitioner waives a claim in state
court, that waiver is an independent and adequate state law determination that bars federal habeas
relief. See Harris v. Reed, 489 U.S. 255, 258 (1989) (citing Wainwright v. Sykes, 433 U.S. 72, 86-
87 (1977)); see also Wright v. Walls, 288 F.3d 937, 947 (7th Cir. 2002) (waiver is an independent

and adequate state ground in Illinois); Patrasso v. Nelson, 121 F.3d 297, 301-02 (7th Cir. 1997)

(comparing waiver and res judicata under Illinois law, and the consequences of each on subsequent
federal habeas review). However, for waiver to bar federal habeas review, the last state court to
consider the question must have “actually relied on procedural default as the basis for its decision.”
Braun v. Powell, 227 F.3d 908, 912 (7th Cir. 2000). If that is not so, the merits of the issue are
preserved for federal habeas review. See id.

A federal court may not grant habeas relief on a defaulted claim unless the petitioner can
demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal
law, or demonstrate that failure to consider the claim will result in a fundamental miscarriage of

justice. See Edwards v. Carpenter, 529 U.S. 446, 450-52 (2000); Coleman, 501 U.S. at 750;


Johnson stipulated to the facts as recited by the State. Johnson pled guilty to one count of
aggravated battery of'a child, and the State dismissed the remaining counts. The trial court continued
the matter for the aggravation and mitigation hearing.

At the aggravation and mitigation hearing, the State called medical personnel from Cook
County Hospital. The medical personnel testified that Johnson explained that Terrell’s first injury,
the orbital fracture of the tibia, was caused when the infant fell from his shoulders. The medical
personnel testified that Johnson’s explanation was not plausible based on the manner of the infant’s
injury; rather, the injury was indicative of child abuse and it was recommended that the infant be
taken into protective custody. Additionally, the medical personnel testified that Terrell’s second
injury, the head trauma, was similarly indicative of child abuse because a great amount of force
would have to be applied in order to caused the depressed skull fracture that Terrell suffered. The
testimony indicated that Terrell was comatose upon arrival and had to be placed on arespirator. A
CAT scan was performed, which revealed that the infant suffered massive swelling of brain tissue
and internal bleeding, including retinal hemorrhages in the left eye. Medical personnel testified that
a significant amount of force was required to cause the depressed skull fracture Terrell suffered.
Medical personnel also testified that Terrell would experience long term effects from his injuries,
including a loss of vision and mental retardation.

Based on the evidence at the hearing concerning aggravation and mitigation, the Circuit
Court of Cook County sentenced Johnson to a term of imprisonment of twenty-six years.

Cisero filed a direct appeal from his conviction and sentence to the Illinois Appellate Court,
First Judicial District, While on appeal, his appellate counsel filed a motion to withdraw pursuant

to Anders v. California, 386 U.S. 738 (1967), asserting that there were no meritorious issues


inflicted upon his infant son, Terrell Johnson. In the Circuit Court of Cook County, Johnson entered
ablind plea of guilty to one count of aggravated battery ofa child. During the plea colloquy, the trial
court informed Johnson that a hearing would be held concerning aggravation and mitigation, and the
sentence would be determined based on that hearing. After an extensive plea colloquy, at which time
the trial court informed Johnson of his rights, the State recited the facts that it would prove if the case
proceeded to trial.

The facts provided that Johnson’s infant son, Terrell Johnson, was the victim of child abuse.
The facts indicated at least two instances of child abuse. The first instance of child abuse occurred
on May 24, 1997, when Terrell was admitted to Cook County Hospital and diagnosed with an orbital
fracture of the tibia. Based on the manner of injury, medical personnel at Cook County Hospital
believed Johnson’s explanation of Terrell’s injuries to be unworthy of credence and indicative of
child abuse. Medical personnel reported the matter and took Terrell into protective custody.
Following a custody hearing in the State court, Johnson was allowed to have only supervised visits
with Terrell while in the supervision of the infant’s mother. The second instance of child abuse
occurred on June 27, 1997. Contrary to the custody ruling of the State Court, Terrell’s mother left
the infant in the sole custody of Johnson. While Terrell was in Johnson’s unlawful custody, Terrell
was again admitted to Cook County Hospital. Terrell arrived at the hospital in a comatose state.
Terrell suffered a depressed skull fracture, frontal lobe bleeding, and swelling of brain tissue.
Medical personnel questioned Johnson as to the source of Terrell’s injuries. Johnson provided a few
versions of the cause, but then admitted to having given the infant a forceful karate chop to the back
of the head because he was frustrated by the infant’s crying. Medical personnel subsequently

summoned the Chicago Police Department, and after their arrival, Johnson gave a written admission.



IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS leeeen

EASTERN DIVISION DOCKET EH

United States of America ex rel. SEP 21 2004
GREGORY JOHNSON,
No. 02 C 863
Petitioner,
v. Honorable Charles R. Norgle

NEDRA CHANDLER, Warden, Dixon
Correctional Center!

we SS SS SHH HY

Respondent.
OPINION AND ORDER
CHARLES R. NORGLE, District Judge
Before the court is Gregory Johnson’s petition for a writ of habeas corpus pursuant to 28
USS.C. § 2254. Petitioner, Gregory Johnson (“Johnson”), challenges his conviction for aggravated
battery of a child, in violation of 720 Ill. Comp. Stat. 5/12-4.3 (West 1997). For the reasons stated
below, the petition is denied.
I. BACKGROUND?
The State of Hlinois charged Johnson by a five count information with attempted first degree

murder, two counts of aggravated battery of a child, and two counts of aggravated battery for injuries

' In his petition, Johnson named Gary Knop, Warden, Pinckneyville Correctional Center, as respondent.
Johnson was transferred to the Dixon Correctional Center on September 25, 2002. Nedra Chandler is the Warden of
that facility and therefore is the proper respondent in this petition, See Rules Governing Section 2254 Cases in the
United States District Courts, Rule 2 (requiring that the state officer who has custody of the petitioner be named as
the respondent in habeas corpus actions brought pursuant to 28 U.S.C. § 2254).

2 On habeas review, the court must presume that the state courts’ factual determinations are correct unless
the petitioner rebuts the presumption by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1); Sumner v.
Mata, 449 U.S. 539, 544-46 (1981); Todd v. Schomig, 283 F.3d 842, 846 (7th Cir. 2002). Johnson has not
presented clear and convincing evidence to rebut this presumption. Therefore, the court adopts the stipulation of
facts to which Johnson pled guilty, as received by the Circuit Court of Cook County, and the Illinois Appellate
Court’s recitation of facts. See Resp.'s Answer, Exs. C, F.

[S