Kirkman v. Magana

Filing 53

MEMORANDUM Opinion and Order: For the foregoing reasons, the Court denies Kirkman's petition for habeas corpus 1 , but grants Kirkman a certificate of appealability. Civil case terminated. Signed by the Honorable Thomas M. Durkin on 4/11/2019:Mailed notice(srn, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ALBERT KIRKMAN, B54397
Petitioner,
v.
VICTOR CALLOWAY, Warden,
Respondent.

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No. 14-cv-2398
Judge Thomas M. Durkin

MEMORANDUM OPINION AND ORDER
Petitioner Albert Kirkman filed this petition for relief under 28 U.S.C. § 2254,
claiming that the prosecution’s main witness during his trial has recanted his
testimony. For the following reasons, Kirkman’s petition is denied.
Background 1
A. Trial
On April 21, 1992, Willie Johnson, Cedric Herron, and Sammie Walker were
shot. Herron and Walker were killed, and Johnson was seriously injured. The
prosecution’s sole witness to the events was Johnson.
At trial, Johnson testified that on April 21, 1992, he got into a fight with five

The following background is largely taken from the state appellate court’s statement
of facts. See People v. Kirkman, 2013 IL App (1st) 112362-U. In federal habeas corpus
proceedings, the Court accepts as true the factual findings of state courts unless they
are rebutted by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). Tabb v.
Christianson, 855 F.3d 757, 760 (7th Cir.), cert. denied sub nom. Tabb v. Garnett, 138
S. Ct. 365 (2017). The Court has also supplemented the facts from undisputed
evidence in the record where necessary.
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men, including Kirkman, at the home of Keith Ford. Johnson testified that the fight
concerned a matter involving his sister, Latanya Johnson. Johnson’s two friends,
Herron and Walker, arrived at the scene and helped him fight off the individuals
attacking him. Johnson testified that later that night, he was talking to Herron and
Walker outside of his home when two men approached and shot at them. One of the
men was a man Johnson knew as “Duke,” and identified as Kirkman. While lying on
the ground, Johnson looked back and saw Kirkman’s face and another man’s face.
Johnson testified that while he was being treated at the hospital, he told
detectives what happened, described the two shooters, and told them generally where
Duke lived, what car he drove and that he hung around with Ford. Later that day,
detectives returned, and Johnson picked out photos of Duke and the other shooter
from an array of photos. Johnson then was asked whether the men he identified from
the photos were in court. He identified Kirkman as the man he knew as Duke, and
Cedric Cal as the other shooter whose name he did not know. Johnson also identified
Kirkman and Cal as two of the men who had been involved in the fight that stemmed
from the confrontation with Ford.
On cross-examination, Johnson denied that the fight involved Herron’s drug
sales on Ford’s “turf.” Johnson maintained that the fight had started when Johnson
confronted Ford about his sister. He denied seeing the police speak to his girlfriend,
Latrese Buford, or his sister, Latanya, at the hospital.
Detective Mike Miller testified about the police investigation, including his
interactions with Johnson and his identification of the shooters through photographs.

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Miller explained that he and his partner went to the hospital where they interviewed
Johnson in the emergency room while he was being prepared for surgery. Johnson
provided a description of the shooters, identified one by his nickname “Duke,” and
provided a description of the car that had been used. Miller then learned of an arrest
that had occurred around the same time and in the same area as the shooting where
eight people were arrested at Keith Ford’s house. Miller took photos of the arrestees
to Johnson to see if Johnson would identify any as the shooters, but Johnson did not.
Officer John Nee testified that around 1:15 a.m., Nee pulled over a car that
matched the description he had for the car identified by Johnson and arrested both
Kirkman, who was driving, and Cal, who was in the car and matched the general
description of the second shooter. When questioned by Nee about his identity,
Kirkman identified himself as Albert Kirkman, denied he had a street name, but
stated he “had a tattoo of Duke on his left arm.” Miller further testified that after this
arrest, photos were taken of Kirkman and Cal, included in a second photo array, and
shown to Johnson in the hospital where he identified them as the shooters.
Johnson’s girlfriend at the time of the shooting, Latrese Buford, testified for
the defense. Buford testified that on April 21, 1992, she was with Johnson when she
witnessed an altercation between Herron and Ford’s friends over a drug sale. Ford
and Herron, who were present but not in the fight, began to argue, and Herron told
Ford to “get them off my worker.” Ford told his friends to stop, and they did as Ford
and Herron continued to talk. Buford testified that, after the fight, Ford approached
Johnson, informing him that it could be dangerous being around Herron because

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Herron was selling drugs on Ford’s turf. Buford and Johnson then went to Johnson’s
home. Buford testified that sometime after 10 p.m., Herron and Walker arrived at
Johnson’s home, and Johnson stepped outside to talk with them. Buford was inside
the home when she heard gunshots.
Upon this evidence, the jury found Kirkman guilty of murder and aggravated
battery with a firearm. Kirkman was sentenced to life in prison without parole.
B. Post-Conviction Proceedings
Kirkman unsuccessfully filed a direct appeal and three post-conviction
petitions. Those proceedings are not relevant here. Kirkman then filed a motion for
leave to file a successive post-conviction petition. Kirkman claimed he was entitled to
a new trial because Johnson recanted his original trial testimony in which he
identified Kirkman and his co-defendant, Cedric Cal, as the shooters. Johnson had
submitted an affidavit in which he identified Keith Ford and another unidentified
man as the shooters. In his affidavit, Johnson asserted that Ford “was a Regent for
the Gangster Disciples” who “ran the drug trade on North Harding.” Both Johnson
and Herron were members of a rival gang (the Insane Vice Lords), and they also sold
drugs on the street. Kirkman lived down the block and was known to Johnson as a
Conservative Vice Lord. The day before the shooting, Johnson found Kirkman and
Cal selling drugs in front of his house and confronted them, robbing them of their
drugs and money. Johnson’s sister Latanya and girlfriend Latrese Buford witnessed
the altercation. After the shooting, they told police that Kirkman and Cal were the
likely shooters. Johnson “just rolled with it” and identified Kirkman and Cal because

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he “was still pissed that they were taking over [his drug] spot” and wanted to “get[ ]
back at them.” Without objection from the State, the circuit court advanced
Kirkman’s petition to the third stage of postconviction proceedings and conducted an
evidentiary hearing on various dates in 2011.
At Kirkman’s postconviction evidentiary hearing, Johnson testified that his
affidavit was true. He also testified that he knew Kirkman and Cal from living on the
same block, and that he considered them enemies because they sold drugs at the same
spot as him. Johnson denied ever fighting with Kirkman, but he admitted that, on
one occasion in April 1992, Johnson walked up to Kirkman and Cal and “took their
merchandise,” which he indicated was crack cocaine. That was their only dispute, and
they had never been in a fight related to Johnson’s sister.
Johnson also testified that on the night of the shooting, he was outside talking
with Herron and Walker when two men with guns arrived and began shooting. He
identified Ford as one of the shooters and recognized the other man, but he did not
know that man’s name; however, he testified that he knew the man was not Kirkman
nor Cal.
Johnson further testified that he falsely identified Cal and Kirkman as the
shooters because he was afraid of Ford and because his family had received
threatening calls, which he believed came from Ford. Johnson stated that he never
gave the police Ford’s name because he “feared to even use his name” and wanted to
“take care of it in the streets.” When the police returned with the photo lineup,
Johnson explained that he again identified Cal and Kirkman because Ford was

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“adamant about what he would do to [his] people if [he] implicated [Ford] in any way,
type of way, shape, form or fashion.” On cross-examination, Johnson explained that
he heard Latanya and Buford tell the police at the hospital that Cal and Kirkman
were the shooters, so he agreed with them. He explained that “when [his] sister and
[Buford] pointed these guys out [,] it was just convenient,” because he felt like he was
protecting his family. He also admitted that he did not come forward in the 17 years
since Kirkman’s trial until he was contacted by Kirkman’s lawyers in 2009.
The court then questioned Johnson. Regarding when he heard Latanya and
Buford provide police with Kirkman’s name, Johnson testified that he heard this
while he was still on the floor of his mother’s home after the shooting. Regarding the
threatening phone calls, Johnson testified that his mother and sister told him they
had already received calls while he was in the emergency room. Johnson then
testified that he received a call while in the emergency room from someone in the
penitentiary named “Bo Dilly.” Regarding why Johnson was no longer afraid of Ford,
Johnson testified that he spoke to Ray Longstreet, a high-ranking Vice Lord, who told
him that he had nothing to worry about and to “[j]ust get up there and do the right
thing.” He understood Longstreet to be advising him to tell the truth and that he
would be protected if he did so. Johnson’s conversation with Longstreet lasted
“probably not even a minute.” Johnson testified that Longstreet was a high-ranking
member of the Vice Lords; and that he, Kirkman and Cal were also members of the
Vice Lords, although he claimed that he was “retired” from the organization. After
speaking to Longstreet, Johnson signed an affidavit that defense counsel had

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prepared. Johnson also testified that he felt safer coming forward now that he lived
in Texas.
At the postconviction hearing, Buford recalled that she did not see either of the
shooters. She also stated that while they were in the emergency room, Johnson told
her that Cal and Kirkman were the shooters but told her not to tell anyone. She
testified that she gave police this information in the car when the detectives took her
home from the hospital. However, Buford denied telling the police that Kirkman or
Cal were the shooters while in the emergency room. She also denied hearing Latanya
provide that information to the police while in the emergency room. Buford claimed
that she did not see Johnson make or receive any phone calls in the emergency room
and testified that there were no phones present in the emergency room, but that there
was a phone in Johnson’s hospital room.
State’s Attorney Investigator Joanne Ryan testified that on April 6, 2010, she
interviewed Johnson in Monroe, Louisiana. Johnson told her that on the day of the
shooting, he slammed Kirkman to the ground and stole his drugs. Johnson further
told her that later that day, there was a physical altercation between Ford’s gang and
other drug dealers doing business nearby. Johnson told Ryan that Ford was one of
the shooters, but that he did not get a good look at the second shooter. He admitted
to Ryan that he could not identify the second shooter and could not exclude Kirkman
as the possible second shooter. Johnson also said that he never told the defense
investigator that he was certain that the second shooter was neither Kirkman nor
Cal.

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On July 15, 2011, the circuit court denied Kirkman’s petition, finding that
Johnson’s recantation lacked credibility. The court found that in his new testimony,
Johnson gave conflicting accounts of when he heard Latanya and Buford identify
Kirkman to the police and how many shooters there were. The court further noted
that Johnson testified that he and his family members were receiving calls in the
emergency room, which Buford testified had no phone. The court also found Johnson’s
identification of the shooters at the hospital to be more credible than his explanation
that he falsely identified Kirkman so that he could handle Ford on the street. Further,
the circuit court determined that Johnson came forward for no reason other than his
loyalty to the Vice Lords. Additionally, the court found that Johnson seemed more
concerned about satisfying a gang acquaintance, Ray Longstreet, than he was about
justice and that he did not seem concerned about the criminal penalties associated
with perjury. In conclusion, the circuit court found that the “number of shooters,
number of cartridges found at the scene, the testimony concerning the placement of
the shooters, all convinced [him] that the other evidence in this case [was] consistent
with [Johnson’s] testimony” at trial. The court determined that Johnson’s recantation
was not credible and “[b]ecause it [was] not credible, it [was] not material.” The court
therefore denied Kirkman’s petition.
On appeal, Kirkman argued that the trial court erred in finding Johnson’s
recantation incredible, that the court improperly excluded material evidence, and
that Kirkman’s conviction violated his due process rights. R. 46-39 at 1. On June 17,
2013, the Illinois appellate court affirmed the trial court on all grounds, finding that

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the trial court’s rejection of Johnson’s recantation was not “manifestly erroneous.” R.
46-42 at 10-11.
The appellate court found that Johnson’s testimony was unreliable because it
contained “internal inconsistencies and implausible explanations” because of
discrepancies between Johnson’s testimony and the testimony of another witness
about: 1) when the police were given Kirkman and Cal’s names; 2) whether there was
a telephone in the emergency room where Johnson could receive threatening phone
calls; and 3) whether Johnson was afraid of Ford but falsely implicated Kirkman and
Cal because Johnson wanted to take care of Ford himself. The appellate court also
found that Johnson’s “original identification was more believable than his
recantation” because Johnson thought he was dying in the emergency room. Id.
Finally, the appellate court held that Johnson’s recantation was motivated not by a
desire to tell the truth but by a gang allegiance. Johnson testified that he came
forward after a less-than-one-minute phone call with a high-ranking Vice Lord. This
was a reasonable conclusion, the appellate court held, because Kirkman, Cal,
Longstreet, and Johnson were all members of the Vice Lords. Id. at ¶ 20. The
appellate court also ruled it was harmless error for the postconviction court to exclude
evidence that Kirkman and Cal were not affiliated with any gang. Id. at ¶¶ 9-10.
Kirkman then filed a petition for leave to appeal to the Illinois Supreme Court. His
petition was denied. People v. Kirkman, 2 N.E.3d 1048 (2013) (Table).
C. Johnson’s Conviction
Following the evidentiary hearing, the Cook County State’s Attorney’s Office

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prosecuted Johnson for perjury under the theory that he had made contradictory
statements in two different portions of these proceedings. People v. Johnson, 11-CR13172; Frank Main, Murder Witness Recants, is Charged with Perjury, Chi. Sun
Times, September 3, 2011, 2011 WLNR 17458797. Interestingly, that conviction did
not specify which of the two statements were false. Johnson ultimately pled guilty
and received an agreed sentence of 30 months in prison. Man Sentenced to Prison for
Lying About 1992 Double Slaying, Chi. Sun Times, October 7, 2014. Several months
later, in his last days in office, then-Governor Patrick Quinn commuted Johnson’s
sentence to time served. Pardons Play Key Role in Granting Justice, Chi. Sun Times,
June 24, 2016.
D. Habeas Petition and Johnson’s Conviction
Kirkman timely filed this federal habeas petition in 2014, R. 1. The case was
stayed while Kirkman pursued one more habeas petition in Illinois state courts based
on the United States Supreme Court’s decision in Miller v. Alabama, 567 U.S. 460
(2012). That petition was successful, and on February 16, 2018, the state nolle prossed
his aggravated battery conviction and the state court resentenced him to 60 years on
both murder convictions to run concurrently.
Analysis
Kirkman’s primary argument here is that his conviction violated his right to
due process under the United States Constitution because it was based solely on
Johnson’s testimony, who is an “inherently unreliable” source. Kirkman contends
that Johnson’s recantation was credible and thus he offered perjured testimony at

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the time of the original trial. Along these lines, Kirkman argues that the state court’s
determination that Johnson’s recantation was incredible was based on an
unreasonable determination of the facts in violation of 28 U.S.C. § 2254(d)(2).
Kirkman further argues that even if Johnson’s recantation was incredible, Johnson
is nonetheless an unreliable witness, and his conviction should not have been based
solely on that testimony. Finally, Kirkman claims that he has a freestanding actual
innocence claim. The Court will address each claim in turn.
A.

Due Process Claim
1. Perjured Testimony

The Supreme Court has long held that a conviction obtained using knowingly
perjured testimony violates due process. See Mooney v. Holohan, 294 U.S. 103, 112
(1935); see also United States v. Agurs, 427 U.S. 97, 103 (1976) (“[T]he Court has
consistently held that a conviction obtained by the knowing use of perjured testimony
is fundamentally unfair, and must be set aside if there is any reasonable likelihood
that the false testimony could have affected the judgment of the jury.”); Armstrong v.
Daily, 786 F.3d 529, 540 (7th Cir. 2015).
But to establish a due process violation based on perjured testimony, Kirkman
would have to show that the state knew it was using perjured testimony. See Wilson
v. Bryant, 69 F. App’x 782, 784 (7th Cir. 2003) (petitioner’s failure to show that
testimony was false or that the prosecutor knew of its falsity caused his habeas claim
to fail); Shasteen v. Saver, 252 F.3d 929, 933 (7th Cir. 2001) (“[w]hen the defendant
argues that the government allegedly used perjured testimony, to warrant setting the
verdict aside and ordering a new trial, the defendant must establish,” among other
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things, that “the prosecution knew or should have known of the perjury”). There is no
indication that it did here. Nor does Kirkman argue that the state used knowingly
perjured testimony. Accordingly, Kirkman’s argument that his conviction violates
due process because it was based on perjured testimony fails at the outset.
In any event, Kirkman’s claim fails because he has not shown that Johnson’s
testimony was perjured in the first place. To be entitled to habeas relief, a petitioner
must show that a state-court decision was (1) “contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States” or (2) was “based on an unreasonable
determination of the facts in the light of the evidence presented.” 28 U.S.C. § 2254(d).
Morgan v. Hardy, 662 F.3d 790, 797 (7th Cir. 2011). Kirkman’s argument here focuses
on that second prong by arguing that the state court made an unreasonable
determination of the facts when it held that Johnson’s recantation was not credible
and that his original testimony was more believable. A state court decision rests on
an unreasonable factual determination when “the state court determined an
underlying factual issue against the clear and convincing weight of the evidence.”
Morgan, 662 F.3d at 798. “[S]o long as fair–minded jurists could disagree on the
correctness of the state court’s decision,” the decision is reasonable. Harrington v.
Richter, 562 U.S. 86, 101 (2011). “A decision is not objectively unreasonable unless it
falls ‘well outside the boundaries of permissible differences of opinion.’” Starkweather
v. Smith, 574 F.3d 399, 402 (7th Cir. 2009) (quoting Hardaway v. Young, 302 F.3d
757, 762 (7th Cir. 2002)).

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To support his claim on this basis, Kirkman points to several alleged
inconsistencies between the record and the state court’s factual determinations,
including that (1) Johnson’s motive for coming forward was because of Ray
Longstreet’s call; (2) the phone call was made because of his “alliance and loyalty”
with a continuing criminal enterprise; (3) Kirkman and Cal were part of that
enterprise; and (4) Johnson did not come forward to “see that justice was done.”
The crux of all four of these inconsistencies is Kirkman’s contention that the
trial court’s “credibility determination was based on his conclusion that Johnson was
only testifying out of gang loyalty.” R. 41 at 37. Kirkman points to the state court’s
refusal to allow testimony that Kirkman and Cal were “neutrons,” or unaffiliated
neutral persons in the neighborhood. Specifically, Johnson’s girlfriend, Latrese
Buford, was to testify that the reputation of Cal and Kirkman in the neighborhood
was that they were “neutrons” or neutral parties. See R. 46-38 at 213-14. The court
noted that Buford did not know Kirkman, however. Further, the court found the issue
irrelevant because Kirkman and Cal’s character had not been placed into issue. Id.
Kirkman contends the trial court’s credibility determination was unreasonable
because it did not allow in this evidence, but then focused on the question of gang
affiliation “almost exclusively” in its decision making.
Although Kirkman may be unhappy with the trial court’s determination, it was
not unreasonable in light of the evidence. First, there is evidence that Johnson, Ford,
Kirkman, Cal, and Ray Longstreet were all gang members. Both Johnson and Herron
were members of the Insane Vice Lords. R. 46-37 at 50. Kirkman lived down the block

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and was known to Johnson as a Conservative Vice Lord. Id.; see also R. 46-38 at 158.
Ray Longstreet was a “very high ranking” Vice Lord who had the authority to tell
Johnson what to do until Johnson “retired” from the gang sometime earlier. R. 46-38
at 159-60. Even if the trial court had allowed in the evidence that Kirkman was
merely a “neutron,” it would have had to weigh that evidence with the evidence in
Johnson’s affidavit and his testimony that Kirkman was affiliated with a gang. It was
not unreasonable for the state court judge to believe that Johnson’s gang alliances
motivated him to recant.
The Court also disagrees with Kirkman’s argument that the state courts’
decisions were made solely because of the gang evidence. The state court listed a
number of inconsistencies in Johnson’s various testimonies to find his recantation
was “internally inconsistent and implausible.” R. 46-38 at 367. The court also found
that Johnson’s original identification, which the court noted had a “dying declaration
aspect” to it, was more reliable than Johnson’s after-the-fact testimony. Id. at 368.
The court then considered the motive behind Johnson’s recantation, which it
determined was driven by gang alliances. Finally, the court noted that the evidence
at the scene of the murders was more consistent with Johnson’s original testimony
than his recantation. Id. at 370-71. The appellate court relied on these same
determinations to affirm the trial court’s finding. Johnson’s gang affiliations were
certainly a part of the courts’ credibility determination, but by no means were they
the exclusive factors.
In any event, the specific inconsistencies Kirkman points to between the record

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evidence and the postconviction court’s findings were not unreasonable. First,
Kirkman argues that the state court’s finding that Johnson recanted because of Ray
Longstreet’s call was unreasonable because, in fact, it was Kirkman’s investigator
who approached Johnson. The Court does not find this distinction relevant. While
Kirkman’s investigator may have approached Johnson, it is clear from the record that
Johnson would not have recanted had it not been for his phone call with Longstreet,
who promised Johnson that he would be protected if he came forward. Johnson’s
recantation would have seemed even more incredible had he decided to recant solely
because an investigator approached him years after the trial.
Next, Kirkman contends that the state court erred when it concluded that the
phone call with Ray Longstreet was made because of Johnson’s “alliance and loyalty”
with the Vice Lords. Kirkman points to Johnson’s testimony that Longstreet told him
to “tell the honest to God truth” as evidence that Johnson came forward for justice’s
sake. The appellate court rejected that argument, finding that the “circuit court’s
conclusion was not unfounded given Johnson’s testimony and the fact that he, the
defendant, Cal and Longstreet were all members of the Vice Lord gang family and
Ford was a member of a rival gang.” People v. Kirkman, 2013 IL App (1st) 112362-U,
¶ 20. As noted above, the state court’s determination was not unreasonable given
evidence of the parties’ gang affiliations. The Court cannot conclude that the state
court’s decision to accept one set of facts (that Johnson’s decision was motivated by
gang affiliation) over another (that it was motivated by the truth) is against the clear
and convincing weight of evidence when both are supported by evidence. See Morgan,

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662 F.3d at 799.
Third, Kirkman argues that there was no evidence that he was involved in any
gang. As the Court has already stated, there was evidence that Kirkman was
affiliated with a gang—namely, Johnson’s affidavit and hearing testimony where he
testified that at the time of the shooting, Kirkman was a Conservative Vice Lord,
Johnson and Herron were affiliated with the Insane Vice Lords, and Ford was a highranking member of the rival Gangster Disciples. R. 46-37 at 50; R. 46-38 at 158-60.
Again, the state court’s decision is not objectively unreasonable simply because there
is room for difference of opinion. It is only objectively unreasonable if the decision
falls “well outside the boundaries of permissible differences of opinion.” Morgan, 662
F.3d at 800.
Finally, Kirkman takes issue with the state court’s finding that Johnson’s
recantation was not done through a “desire to see that the criminal justice system is
done,” and tell the truth. The state court’s inference that Johnson was acting in the
interest of the Vice Lords rather than merely for justice’s sake is not against the clear
and convincing weight of the evidence. Johnson did not come forward with his new
version of the truth until more than 15 years after the original trial and did so only
after speaking with Longstreet. The Court also notes that Johnson’s recantation is
properly subject to scrutiny. See Mendiola v. Schomig, 224 F.3d 589, 593 (7th Cir.
2000) (“Disbelief of recantations is sensible.”). His recantation is especially “suspect”
because it was “produced . . . at the 11th hour with no reasonable explanation for the
. . . delay.” Herrera v. Collins, 506 U.S. 390, 423 (1993) (O’Connor, J., concurring).

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On the overall record, 2 it was not objectively unreasonable for the state court
to conclude that Johnson’s recantation was incredible.
2. Inherently Unreliable Testimony
Kirkman also argues that even if Johnson’s original testimony was true,
Johnson has proven himself to be an unreliable witness. Because Johnson was the
sole eyewitness at trial, Kirkman argues, his conviction based on that unreliable
testimony violates due process under Jackson v. Virginia, 443 U.S. 307 (1979),
entitling him to a new trial. The Supreme Court in Jackson held that a federal habeas
court may review a claim that the evidence adduced at a state trial was not sufficient
to convict a criminal defendant beyond a reasonable doubt. Kirkman uses Jackson to
argue that Johnson’s inherently unreliable testimony alone cannot be sufficient to
convict Kirkman.
Preliminarily, the parties dispute whether this argument is procedurally
defaulted. Kirkman did not raise it before the state trial court. Instead, the only claim
Kirkman raised at that level was that he was entitled to post-conviction relief because
he was actually innocent based on the newly discovered evidence of Johnson’s
recantation. See R. 46-37. The trial court rejected that argument after finding
Johnson’s recantation to be incredible. Kirkman then appealed, arguing for the first

The Court’s general review of the state court record indicates the decision was not
unreasonable. To list just one example, Kirkman had a motive to shoot Johnson and
the others, as Johnson himself testified at the postconviction hearing—Kirkman
likely was angry about Johnson’s robbery of his crack cocaine before the shooting. See
R. 46-38 at 120 (“I walked right up and grabbed the magnet and walked away.” . . .
Q. “You think he was happy about that when you took his drugs?” A. “I wouldn’t be.”
Q. “Do you think he was angry about that?” A. “I would be.”).
2

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time that he was entitled to a new trial because of Johnson’s recantation, regardless
of whether the recantation or the original testimony was true. See R. 46-39 at 70. He
argued that under Jackson, convictions based on unreliable or insufficient evidence
violate the due process clause. Id.
The appellate court rejected that argument, stating that it assumed that
“Johnson’s original trial testimony was perjured, and his recantation is honest. The
circuit court rejected that assumption, and we have determined that its conclusion
was not manifestly erroneous.” People v. Kirkman, 2013 IL App (1st) 112362-U, ¶ 23.
Because the appellate court reached the issue, the Court finds it was not procedurally
defaulted. See Pole v. Randolph, 570 F.3d 922, 937 (7th Cir. 2009) (where the last
state court to consider the issue does not rely on a procedural bar, but instead
addresses it on the merits, there is no procedural default.). 3
Turning now to Kirkman’s claim, the state court’s holding here was not
unreasonable. Because the trial court held that Johnson’s original testimony was
more persuasive than his recantation, Kirkman was not denied due process during
the trial based on that testimony. That Johnson is simply an “inherently unreliable”

Even if the Court found that the claim was procedurally defaulted, it would still
address it because it finds that Kirkman meets the actual innocence gateway
standard established by the Supreme Court in Schlup v. Delo, 513 U.S. 830 (1995).
That standard applies when a claim is procedurally defaulted, but the petitioner can
show that it is more likely than not that no reasonable juror would have convicted
him in light of the new evidence of his innocence. See Arnold v. Dittmann, 901 F.3d
830, 836 (7th Cir. 2018). Here, without Johnson’s testimony, which was the sole
eyewitness testimony attributing the murders to Kirkman, it is more likely than not
that Kirkman would not have been convicted. For this reason, Kirkman’s
procedurally defaulted claims can be considered under the Schlup standard.
3

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witness does not entitle Kirkman to a new trial. Claims of insufficient evidence under
Jackson are limited to record evidence, and do not include newly discovered evidence.
Herrera, 506 U.S. at 402. Further, the Jackson inquiry “does not focus on whether
the trier of fact made the correct guilt or innocence determination, but rather whether
it made a rational decision to convict or acquit.” Id. (emphasis in original). At the
time of the trial, no one involved in Kirkman’s conviction knew that Johnson’s
testimony was unreliable. Johnson’s supposed unreliability does not make the
factfinder’s decision to convict based on the evidence before it at the time of the trial
irrational.
At bottom, Kirkman’s claims are themselves inherently contradictory.
Kirkman asks the Court to believe a witness that lied during the original trial but
has since proven himself to be reliable in his recantation only to turn around and
argue that Johnson is “inherently unreliable” because he lied during at least one of
the proceedings in Kirkman’s case. In either scenario, Kirkman argues he is entitled
to a new trial. Kirkman cannot have it both ways. Johnson’s recantation alone does
not entitle him to a new trial. Rather, it entitles Kirkman to an evidentiary hearing
to determine whether Johnson’s original testimony or his recantation is more
believable. The state court held that hearing and determined the original testimony
was more believable. Without a finding that the state court’s decision was based on
an unreasonable determination of the facts, Kirkman is not entitled to habeas relief.
B.

Actual Innocence

Finally, Kirkman argues he has a freestanding actual innocence claim, relying
on similar principles found at the state court level. The problem with this argument
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is that a claim of innocence, by itself, is not sufficient to warrant habeas relief. See
Herrera, 506 U.S. at 400 (“Claims of actual innocence based on newly discovered
evidence have never been held to state a ground for federal habeas relief absent an
independent constitutional violation occurring in the underlying state criminal
proceeding.”). “This rule is grounded in the principle that federal habeas courts sit to
ensure that individuals are not imprisoned in violation of the Constitution—not to
correct errors of fact.” Id. at 400. “The Court in Herrera assumed without deciding
that the Eighth Amendment precludes the execution of a person who has
demonstrated his actual innocence.” Arnold v. Dittmann, 901 F.3d 830, 837 (7th Cir.
2018). “But neither the Supreme Court nor the Seventh Circuit has yet indicated that
an actual innocence claim could, standing alone, support the issuance of a writ in a
non-capital case.” Id. (citing McQuiggin v. Perkins, 569 U.S. 383, 392 (2013) (“We
have not resolved whether a prisoner may be entitled to habeas relief based on a
freestanding claim of actual innocence.”)); Tabb, 855 F.3d at 764 (describing issue as
“open to debate” and collecting Supreme Court statements to that effect). Indeed, the
Seventh Circuit recently characterized as “doubtful” the notion that such a claim
could support relief on collateral review of a conviction. Arnold, 901 F.3d at 837.
Kirkman’s argument here asks this Court to correct an error of fact committed during
his trial, which the Court cannot do without a showing of a constitutional violation.
If the federal courts do recognize freestanding constitutional claims of actual
innocence, however, it is clear that evidence of innocence will need to meet an
“extraordinarily high” threshold. Herrera, 506 U.S. at 392, 417. Because the Court is

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skeptical of recanted testimony submitted years after the trial, see supra, Kirkman’s
claim does not meet this threshold.
Kirkman also argues that federal courts should recognize freestanding actual
innocence claims like state courts do. But Kirkman has already had the opportunity
to present an actual innocence claim in the state court. In fact, the state court
diligently and deliberately considered his arguments and held an evidentiary
hearing, but did not rule in his favor. The state appellate court likewise considered
his arguments but affirmed the lower court. Kirkman has been granted opportunities
to make his case. Kirkman simply has not been able to show that his conviction
violated the Constitution to warrant habeas relief here.
C.

Certificate of Appealability

The Court will, however, grant Kirkman a certificate of appealability. A
certificate of appealability is warranted when a petitioner has “made a substantial
showing of the denial of a constitutional right,” 28 U.S.C § 2253(c)(2), or, similarly,
when “jurists of reason would find it debatable whether the petition states a valid
claim.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). The Seventh Circuit has
explained that “[m]any prisoners who seem likely to lose in the court of appeals
nonetheless are entitled to certificates of appealability under the statutory standard;
meritorious appeals are a subset of those in which a certificate should issue.” Thomas
v. United States, 328 F.3d 305, 308 (7th Cir. 2003). Therefore, a COA “requires an
overview of the claims in the habeas petition and a general assessment of their
merits,” and that the “resolution was debatable amongst jurists of reason” as opposed
to a “showing that the appeal will succeed.” Miller-El v. Cockrell, 537 U.S. 322, 33621

37 (2003). The Court finds Kirkman meets this standard.
Conclusion
For the foregoing reasons, the Court denies Kirkman’s petition for habeas
corpus [1], but grants Kirkman a certificate of appealability.
ENTERED:

Dated: April 11, 2019

Honorable Thomas M. Durkin
United States District Judge

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