Albert Kirkman v. Scott Thompson ( 2020 )

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
Before BAUER, 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 sen-
tence. 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 Appel-
late 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 individ-
uals 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 match-
ing 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-examina-
tion, 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 for the 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 threat-
ening 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 con-
tained inconsistencies and was implausible. Johnson later
pleaded guilty for perjury, but failed to specify which state-
ment 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 compel-
ling 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 presump-
tion 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 plausibil-
ity 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 found that
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 presumption of innocence disappears.”
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 convinc-
ing 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.