                            In the
 United States Court of Appeals
              For the Seventh Circuit
                         ____________

No. 06-3463
EARL JOHNSON,
                                           Petitioner-Appellant,
                                v.

JOSEPH LOFTUS, Warden,
                                           Respondent-Appellee.
                         ____________
           Appeal from the United States District Court
      for the Northern District of Illinois, Eastern Division.
            No. 05 C 2475—Marvin E. Aspen, Judge.
                         ____________
 ARGUED JANUARY 11, 2008—DECIDED FEBRUARY 21, 2008
                    ____________


 Before BAUER, POSNER, and EVANS, Circuit Judges.
   EVANS, Circuit Judge. Following a jury trial in state
court, Earl Johnson was convicted of murder, attempted
first degree murder, and aggravated battery with a fire-
arm. He was sentenced to concurrent terms of 45 years
for the murder and 30 years each on the other charges.
He appealed, and in an unpublished order on July 21,
1997, the Appellate Court of Illinois affirmed the mur-
der and attempted murder convictions but reversed
the aggravated battery conviction. The Supreme Court
of Illinois denied leave to appeal. Johnson filed a
postconviction petition, which was denied. He again
appealed, and on March 31, 2004, the Appellate Court
of Illinois affirmed the denial and the Illinois Supreme
2                                               No. 06-3463

Court again denied leave to appeal. Johnson’s next stop
was the United States District Court for the Northern
District of Illinois, where he filed his petition for a writ
of habeas corpus pursuant to 28 U.S.C. § 2254. His peti-
tion was denied and he now appeals the judgment dis-
missing his petition.
   Unless petitioner has rebutted the presumption of
correctness that attaches to the state court findings of fact
(and Johnson has not), we presume those facts are cor-
rect. 28 U.S.C. § 2254(e)(1). Here, the facts are that
three brothers, Dexter, Darryl, and Leo Patterson, were
walking down a street in Maywood, Illinois (a Chicago
suburb), when Dexter and Leo were hit by gunshots
fired from a passing car. Leo died as a result of a wound
to his chest; Dexter was treated for a wound to his but-
tocks, but survived.
  Darryl and Dexter testified at trial that before the
shooting they had been walking down the street when they
heard a man call Leo’s name and ask “when are you going
to pay my money.” Leo said he would pay “next Friday.”
The man asked again and Dexter said, “Hey, he is going
to pay your money.” As the brothers continued walking,
a dark blue, four-door car drove toward them. From with-
in the car, two people shot at the brothers.
  Darryl identified Johnson as one of the shooters—
shooting from the back seat, passenger side of the car.
Another shooter was in the front seat. Darryl and Dexter
ran to Leo’s house, which was nearby, where Darryl called
the police and then ran outside to where Leo was lying
on the grass. Leo was conscious but not talking. He died
shortly after arriving at a hospital.
  A few days later, Darryl went to the police station
and identified a dark blue Skylark as the vehicle from
which the shots were fired. Both Darryl and Dexter
No. 06-3463                                               3

identified Johnson from a lineup two weeks later and
at trial.
  Of the many, many issues Johnson has raised in various
courts, the only one presented to us is his contention
that he was denied the effective assistance of counsel
based on three claimed deficiencies in the representa-
tion he received in state court.
  As with all petitions for writs of habeas corpus, we
cannot consider the merits unless the state courts
have first had a full and fair opportunity to review the
claims. That means first, that the petitioner must have
exhausted his state court remedies, which Johnson has
done. Further, if a specific claim is not presented to the
state court when it is required to be, that claim is de-
faulted. Farrell v. Lane, 939 F.2d 409 (7th Cir. 1991). A
procedural default also occurs when a state court dis-
poses of a claim on an independent and adequate state
law ground. Coleman v. Thompson, 501 U.S. 722 (1991).
When a petitioner presents a defaulted claim for fed-
eral habeas review, we may consider it only if he can
establish cause and prejudice for the default or that the
failure to consider the claim would result in a funda-
mental miscarriage of justice.
   As to claims which we do consider, we “shall not” grant
the writ on any claim that was, in fact, considered on the
merits in the state court, unless the state court decision
was contrary to or involved an unreasonable application
of clearly established federal law as determined by the
United States Supreme Court, or resulted in a decision
that was based on an unreasonable determination of the
facts in light of the evidence presented in the state court
proceedings. 28 U.S.C. § 2254(d); Williams v. Taylor,
529 U.S. 362, 376 (2000). The Court has recently reem-
phasized that a state court’s application of clearly estab-
lished law is acceptable, even if it is likely incorrect, so
4                                               No. 06-3463

long as it is reasonable. Wright v. Van Patten, ___ S. Ct.
___, 2008 WL 59980 (2008). If, however, the state court
decision is “contrary to” or an “unreasonable application of
                                                          ”
clearly established federal law as determined by the
Supreme Court, then our consideration is de novo. Wiggins
v. Smith, 539 U.S. 510 (2003); see also Williams, 529 U.S.
362.
  With these principles in mind, we turn to Johnson’s
claims that he was denied the effective assistance of
counsel during the proceedings in state court. Johnson
says that his counsel was ineffective for declining the offer
of a mistrial after some of his alibi witnesses were pre-
cluded from testifying, for failing to pursue obvious
lines of investigation, and for failing to impeach Dexter
by the hospital records showing that his blood alcohol
level was .289 on the night of the offense. The Illinois
Appellate Court referred to Strickland v. Washington, 466
U.S. 668 (1984), to evaluate the claim of ineffective
assistance. We say “referred to” rather than, for in-
stance, “properly used” because Johnson contends that the
decisions of the state appellate court are “contrary to”
Strickland in that they show a misunderstanding of the
standards set out in that case.
  Johnson claims the state appellate court made two
errors. The first arises in the decision on direct appeal.
The Illinois court said that Strickland “prohibits judging
ineffectiveness by second-guessing the actions of defense
counsel.” The use of the word “prohibits” is what Johnson
objects to. However, immediately after this sentence,
the court quotes Strickland on this point:
    Judicial scrutiny of counsel’s performance must be
    highly deferential; a court must resist the temptation
    to second-guess counsel’s actions and avoid the dis-
    torting effects of hindsight.
At 689. It seems to us to be rather picky to draw from
this paragraph the conclusion that the state court did not
No. 06-3463                                                5

know what Strickland meant. Johnson then contends,
however, that because of this misunderstanding, the
court failed to analyze his claim. It is true that the court
did not elaborate on the claim on direct review; however,
it did consider the issue on appeal from his postconvic-
tion motion.
  The second claimed error is in the decision reviewing
Johnson’s postconviction motion. The appellate court
said that under Strickland, “a defendant must demon-
strate that, but for defense counsel’s deficient performance,
the result of the proceeding would have been different.”
Strickland, of course, requires only that there be a “rea-
sonable probability” that the outcome would have been
different. However, on the very next page, in discussing
possible prejudice from not pursuing Dexter’s blood alcohol
level, the court correctly states that Johnson had not
shown a “reasonable possibility” that the outcome would
have been different. On this issue as well, we cannot find
that the state courts used a standard contrary to that set
out in Strickland.
  If we were to conclude that somehow the court’s under-
standing was “contrary to” clearly established law, we
would then consider the issue de novo. Wiggins, 539 U.S.
510. In this case, it would make little difference. Our
independent view of Johnson’s claims mirrors that of the
state courts.
  As the state court understood, under Strickland, our
review of counsel’s performance “must be highly deferen-
tial” and “every effort [must] be made to eliminate the
distorting effects of hindsight, to reconstruct the cir-
cumstances of counsel’s challenged conduct, and to evalu-
ate the conduct from counsel’s perspective at the time.”
At 689. Even when the claim is not subject to § 2254(d)(1)
deference, a defendant must overcome the “presumption
that, under the circumstances, the challenged action
6                                              No. 06-3463

‘might be considered sound trial strategy.’ ” At 689, quot-
ing Michel v. Louisiana, 350 U.S. 91, 101 (1955).
  Johnson’s first basis for claiming his counsel was
deficient involves the exclusion of alibi witnesses. During
the trial, four alibi witnesses were in the courtroom dur-
ing the presentation of the state’s case, in violation of an
exclusion order. The judge determined they could not
testify. Like the three other witnesses who were allowed
to testify, the witnesses were prepared to say that, at
the time of the murder, they were with Johnson watching
a video—Home Alone 2. The excluded witnesses were
Johnson’s brother, his one-time girlfriend, his mother’s
boyfriend, and possibly his mother. Whether his mother
belongs in this group is a question mark because the
parties stipulated to her proposed testimony that she
received an invoice for the movie which she rented
that day.
   When the witnesses were excluded, the judge asked
whether Johnson wanted a mistrial. After a recess, coun-
sel declined and decided to proceed with the trial. The
Illinois Appellate Court determined that counsel made
a strategic choice to forego the testimony. Johnson does
not overcome the presumption that the choice was, in
fact, strategic. There are many factors which could sup-
port the choice. The excluded witnesses all had some
familial or romantic relationship with Johnson, and for
that reason their testimony might have been no more
compelling than the testimony of Johnson’s other three
alibi witnesses who did testify. Counsel could well have
thought that three witnesses to the same event were
sufficient. Perhaps he thought that the alibi testimony
went so well he did not want to risk undermining it
by calling other witnesses. Other considerations might
have been that he had already revealed his hand in cross-
examining the state’s witnesses and did not want to
face them in a second trial when they would be better
No. 06-3463                                              7

prepared to meet cross-examination. Or he might have
thought he had lucked out and gotten a favorable jury.
We don’t know; and the reason we don’t know is pre-
cisely because Johnson never asked, nor did counsel’s
affidavit, presented early in the proceedings, cover the
matter. In the absence of information, we cannot say
that the state court engaged in an unreasonable applica-
tion of Strickland by presuming that counsel’s choice
was strategic. We would do the same.
  Next, Johnson argues that his attorney was incom-
petent for failing to “canvass the neighborhood,” which
would have revealed another alibi witness. That witness
was then-12-year-old Rushaun Hubbard. Hubbard says
in an affidavit that he went to his living room window
two to three minutes after hearing gunshots; he then
went outside with his brother. He saw Johnson leaving
his house, and Johnson asked him what was going on.
The Illinois Appellate Court found that there was nothing
in the record to show that Johnson had mentioned
this incident to counsel. In addition, Johnson did not
mention Hubbard in his trial testimony. Rather, he
testified that he learned about the shooting from Frederick
Johnson, who went outside the house where petitioner
Johnson claims he was during the shooting and re-
turned moments later, telling everyone that someone had
been shot down the street. The court found that, in
this context, counsel’s performance was not deficient for
failing to find Hubbard. We cannot say the court’s find-
ing was an unreasonable application of Strickland. Fur-
thermore, the court pointed out that Hubbard’s testimony
was of questionable value and perhaps raised more
questions than it answered. For instance, if Frederick
had told everyone there was a shooting, why would
Johnson ask Hubbard what was going on. Also, because
Hubbard waited two to three minutes before going out-
side, Hubbard’s testimony would not preclude that possi-
bility that Johnson was the shooter.
8                                              No. 06-3463

   Finally, Johnson claims that counsel was ineffective
for failing to impeach Dexter Patterson with the medical
test that showed his blood-alcohol level was .289—which
Johnson argues would have cast doubt on his eye-witness
testimony. The claim, however, was procedurally de-
faulted. The state appellate court explicitly held that
Johnson waived the argument by failing to comply with the
Illinois procedural requirement that petitioners raise all
claims in their postconviction petition.
    As we said in Szabo v. Walls, 313 F.3d 392, 395 (2002),
     A state is entitled to treat as forfeited a proposition
     that was not presented in the right court, in the
     right way, and at the right time—as state rules de-
     fine those courts, ways, and times.
Failure to comply with those rules furnishes an “independ-
ent and adequate state ground” that “blocks federal
collateral review.” Id. We also found in Szabo that
Illinois has long had a law which states that a prisoner
is entitled to only one postconviction proceeding.
  In Johnson’s case, despite the default, the state appel-
late court went on to note that, even if the evidence
had been admitted, there was no reasonable possibility
that the outcome of the trial would have been different.
Darryl Patterson testified that Dexter was intoxicated on
the night of the shooting. While the exact blood-alcohol
level might have given Johnson’s case a bit of a boost,
we could not say, were we able to consider the issue,
that the Illinois court’s application of the Strickland
standard was unreasonable.
 Accordingly, the judgment of the district court is
AFFIRMED.


                    USCA-02-C-0072—2-21-08
