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Johnson v. Thurmer

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ARGUED JANUARY 14, 2009

Before CUDAHY, KANNE, and TINDER, Circuit Judges.

Herbert Johnson was charged with five counts of armed robbery in Wisconsin state court, convicted by a jury, and sentenced to sixty-eight years in prison. After Johnson’s no-merit appeal concluded, he attempted to traverse the murky waters of state collateral attack, bringing new claims of ineffective assistance of trial and appellate counsel. The state courts held that Johnson’s new claims were procedurally de- faulted because he had not raised them in response to the initial no-merit report. Johnson then filed a writ of habeas corpus in the United States District Court for the Eastern District of Wisconsin, again asserting ineffective assistance of trial and appellate counsel. The district court denied the writ on the merits, but only after holding that the Wisconsin court ruling of procedural default was not an adequate and independent state ground barring federal review. Johnson now appeals the denial of the writ. We agree with the district court’s ruling that habeas review was not precluded by state procedural default. Because Johnson’s ineffective assistance of counsel claims lack merit, we affirm the denial of the writ.

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