06-2458 Johnson v. Hulett

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Habeas Corpus
Procedural default

Where a habeas corpus petitioner did not raise any of the issues she raised on appeal in the district court, the issues are procedurally defaulted.

"Johnson's claim in her habeas petition regarding the absence of 'her two witness[es]' does not even mention Brown and Smith, nor can it fairly be construed as a Sixth Amendment claim of ineffective assistance of counsel. Her petition asserts only that she was 'denied the right to have her two witness[es] testify on her behalf' because 'they were never call[ed] to the stand' even though they were on the prosecutor's witness list. This appears to be an accusation of misconduct by the prosecution, something akin to a claim under Brady v. Maryland, 373 U.S. 83 (1963), which is hardly the same as an ineffective-assistance-of-counsel claim. Instead of putting the same 'operative facts and controlling law' in her habeas petition as she did in state court, Anderson, 471 F.3d at 815, Johnson asserted an entirely new constitutional claim that the district court correctly determined was defaulted. Moreover, as we have noted, Johnson may not save her claim on appeal by recasting it as an allegation that her counsel should have investigated Brown and Smith as potential exculpatory witnesses. That argument is waived for not having been raised in the habeas petition."

Affirmed.

06-2458 Johnson v. Hulett

Appeal from the United States District Court for the Northern District of Illinois, Der-Yeghiayan, J., Sykes, J.

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