                             In the

United States Court of Appeals
              For the Seventh Circuit

No. 06-2458

K ATHREAN JOHNSON,
                                               Petitioner-Appellant,
                                 v.

M ELODY H ULETT, Warden,
                                               Respondent-Appellee.


            Appeal from the United States District Court
       for the Northern District of Illinois, Eastern Division.
          No. 05 C 4302—Samuel Der-Yeghiayan, Judge.



      A RGUED M ARCH 31, 2008—D ECIDED JULY 27, 2009




 Before K ANNE, E VANS, and S YKES, Circuit Judges.
   S YKES, Circuit Judge. Kathrean Johnson was convicted
of first-degree murder after she shot and killed King
“Mickey” Holzendorf outside of Jones City Tire Shop
in Chicago. After an unsuccessful direct appeal and post-
conviction proceedings in the Illinois state courts, she
filed a habeas petition in the district court. The court
denied the petition because the claims she presented
for federal habeas review were different from those
she had presented to the state court.
2                                               No. 06-2458

  We affirm. On appeal, Johnson has tried to recast
her habeas claims to conform more closely to the
ineffective-assistance-of-counsel claims she asserted in
the postconviction proceedings in state court. But argu-
ments raised for the first time on appeal are waived.
Because the grounds for relief Johnson included in her
habeas petition differ markedly from those she presented
in state court, they are procedurally defaulted. Having
failed to include in her habeas petition the claims she
fairly presented in the state court, she cannot now
resurrect them on appeal. Even if Johnson could over-
come these procedural irregularities, she would lose on
the merits. The state appellate court did not unrea-
sonably reject Johnson’s ineffective-assistance-of-counsel
claims.


                      I. Background
  Kathrean Johnson was convicted of first-degree murder
after a bench trial in Cook County Circuit Court. The
evidence presented at trial established that Johnson fatally
shot an unarmed coworker at a Chicago tire shop after
an argument about the volume of a shop’s radio. More
specifically, on a Saturday afternoon in the late spring of
1999, Johnson was working at the Jones City Tire Shop
in Chicago. She and fellow employee King “Mickey”
Holzendorf had a rocky relationship and on that day
were arguing over the volume of the shop’s radio. The
two began scuffling after Johnson tried to lower the
volume. The shop’s owner, Henry Hughes, asked Johnson
to leave the shop. Johnson did so but returned a short
No. 06-2458                                                      3

time later and told Erby Taylor, another coworker, that
she had retrieved a gun from her apartment, which she
hid in her jacket. Taylor paid no attention, and Johnson
resumed her work.
  The dispute soon flared again and spilled outside
where Holzendorf was working on a car in the shop’s
yard. As Johnson and Holzendorf continued their argu-
ment, Eugene Hardrick, another coworker, came out-
side on his way to the grocery store across the street.
Hardrick testified that Holzendorf had nothing in
his hands and that Johnson was wearing a jacket in
which she had a gun. Johnson pulled the gun out of her
jacket pocket and shot once towards Holzendorf’s feet.
He jumped back and held out his hands to show they
were empty. Johnson then raised the gun and shot
Holzendorf in the chest.1




1
  Johnson’s trial testimony differed from the accounts provided
by Hardrick and contained in Johnson’s confession in police
custody following the shooting. The trial judge did not believe
Johnson’s testimony was credible and instead credited her
statement to police as well as the testimony of Hardrick
and other eyewitnesses. See infra pp. 4-5. State-court deter-
minations of factual issues are “presumed correct” unless the
petitioner can rebut the presumption “by clear and convincing
evidence.” 28 U.S.C. § 2254(e)(1); Sprosty v. Buchler, 79 F.3d 635,
643 (7th Cir. 1996) (“The resolution of a factual issue that
involves the state trial court’s evaluation of the credibility and
demeanor of witnesses is one that is accorded particular
deference.”). Johnson has made no attempt to challenge the
state court’s factual determinations.
4                                               No. 06-2458

  At the sound of gunfire, Hughes came out of his
shop and asked Johnson why she had shot Holzendorf,
who was his cousin. Johnson told Hughes that if he
didn’t back away from her, she would shoot him as
well. Hughes stepped back and walked over to where
Holzendorf lay on the ground. Neither he nor Taylor (who
had come out of the shop a few moments before Hughes)
noticed any weapons near Holzendorf’s body. In the
meantime, Hardrick went to the grocery store across
the street and called the police.
  After the shooting Johnson became frightened and took
a cab back to her apartment. She changed coats and was
about to leave the building when police arrived and
arrested her. At the police station, Johnson agreed to
make a statement to Assistant State’s Attorney Andreana
Turano-Michiels, who transcribed the statement by
hand. In it Johnson admitted that Holzendorf was
unarmed and that she shot him at close range.
  The state’s evidence at trial consisted primarily of
testimony from Taylor, Hughes, and Hardrick. Johnson’s
confession was also admitted into evidence. Johnson
took the stand in her own defense and testified in contra-
diction of her prior statement. In addition, the parties
stipulated that a toxicology analysis confirmed that
Holzendorf had cocaine, morphine, and ethanol in his
blood at the time of his death.
  The state trial court entered its findings into the record
at the close of evidence. The judge refused to credit John-
son’s trial testimony because she was “elusive” on cross-
examination and “parried with the State’s attorney.” On
No. 06-2458                                                5

the other hand, the court said, “[A]ll of the state’s wit-
nesses testified very forthrightly and credibly.” Based on
these credibility determinations and its evaluation of
the evidence, the court found Johnson guilty of first-
degree murder and sentenced her to 25 years in prison.
  Johnson’s conviction was affirmed on appeal, and she
then filed a pro se petition for postconviction relief in
the circuit court, claiming (along with other arguments
not relevant here) that she had received ineffective assis-
tance of counsel. The circuit court denied relief, and
the Illinois Appellate Court affirmed. After the Illinois
Supreme Court denied leave to appeal, Johnson filed a
pro se petition for a writ of habeas corpus in the district
court. In her petition, Johnson generically asserted a
violation of her right to the effective assistance of counsel
and also included a variety of other claims. Noting that
the grounds for relief in Johnson’s habeas petition had
shifted from those she asserted in state court, the district
court held that she had procedurally defaulted her
claims and denied the petition.
  We issued a certificate of appealability on two ques-
tions: whether Johnson’s habeas claims were procedurally
defaulted and whether Johnson’s trial counsel was inef-
fective in failing to develop certain evidence relevant to
the issue of Johnson’s intent.


                       II. Analysis
  The district court held that all of the claims Johnson
raised in her habeas petition were procedurally defaulted
6                                                 No. 06-2458

because they either were not raised in the state-court
postconviction proceedings or were raised but later
abandoned. To obtain federal habeas review, a state
prisoner must first submit his claims through one full
round of state-court review.2 Picard v. Connor, 404 U.S.
270, 275-76 (1971) (“Only if the state courts have had
the first opportunity to hear the claim sought to be vindi-
cated in a federal habeas proceeding does it make sense
to speak of the exhaustion of state remedies.”); Johnson
v. Loftus, 518 F.3d 453, 455-56 (7th Cir. 2008); Lewis v.
Sternes, 390 F.3d 1019, 1025 (7th Cir. 2004). To satisfy this
requirement, Johnson must have fairly presented the
substance of her claims to the state courts by articulating
both the operative facts and applicable law that she
claims entitle her to relief. Anderson v. Benik, 471 F.3d 811,
814 (7th Cir. 2006). The penalty for failing to fully and
fairly present her arguments to the state court is proce-
dural default. Id. We may consider a defaulted claim
only if the petitioner “can establish cause and prejudice
for the default or that the failure to consider the claim
would result in a fundamental miscarriage of justice.”
Johnson, 518 F.3d at 455-56.
  In her state postconviction petition, Johnson argued
(among other claims not relevant here) three different


2
   It is undisputed that Johnson exhausted her state remedies
in that she proceeded through a direct appeal and one full
round of postconviction proceedings. 28 U.S.C. § 2254(b)(1)(A);
see also O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). The
issue here, as we will explain, is whether she satisfied the
fair presentment requirement.
No. 06-2458                                                7

theories of ineffective assistance of counsel based on
Strickland v. Washington, 466 U.S. 668 (1984). First, she
claimed that her trial counsel should have developed a
more complete argument about her state of mind based
on her knowledge of Holzendorf’s violent past. Counsel
elicited testimony from Johnson that she had earlier
heard Holzendorf brag about having served time in the
penitentiary on a murder charge; in her postconviction
motion, she claimed that her trial counsel failed to
establish the effect of this information on her state of mind
at the time of the shooting. Second, and relatedly, she
claimed that her trial counsel failed to develop evidence
that the alcohol and narcotics in Holzendorf’s system
could have made him violent and aggressive, supporting
her claim that she was acting in self-defense when she
shot him. Finally, she argued without elaboration that her
counsel failed to investigate two potentially exculpatory
witnesses—a Mr. Smith and a Mr. Brown—who could
have provided an unbiased account of the altercation.
The state postconviction court rejected these arguments
and denied relief. The Illinois Appellate Court affirmed,
concluding that prejudice under Strickland had not been
shown.
  In her habeas petition in the district court, Johnson
raised entirely different claims. Indeed, only one of her
habeas claims was even couched in the language of inef-
fective assistance of counsel. In this claim, Johnson noted
the fact that Holzendorf had alcohol and drugs in his
system at the time of his death, but went on to con-
tend only that her counsel was ineffective for failing to
explain certain aspects of the judicial system to her. Her
8                                               No. 06-2458

argument about Brown and Smith morphed into a new
claim: that the state had deliberately prevented “her
two witness[es]” from testifying. She did not mention
the issue of Holzendorf’s murder conviction at all. Finally,
her petition raised the following additional arguments,
not made in the state-court postconviction proceedings:
(1) the evidence did not support her conviction; (2) her
statement to the assistant state’s attorney was involun-
tary; (3) Taylor and Hardrick committed perjury; and
(4) she was charged with two counts of first-degree
murder in violation of double jeopardy.
   The district court contrasted the contents of Johnson’s
habeas petition with the arguments she presented to the
state court, found a procedural default, and denied relief.
On appeal, Johnson belatedly attempts to reassert the
ineffective-assistance-of-counsel arguments she raised in
the state court. She notes that her habeas petition was
filed without the assistance of counsel and argues that a
liberal reading of it permits us to reach the merits.
  Our review of the district court’s finding of procedural
default is de novo. Lewis, 390 F.3d at 1025. We agree
with the district court that Johnson’s habeas petition did
not raise any of the three arguments she presented to the
state appellate court and now attempts to reassert on
appeal. Claims not made in the district court in a habeas
petition are deemed waived and cannot be raised for
the first time on appeal. Weber v. Murphy, 15 F.3d 691, 695
(7th Cir. 1994).
  A bare mention of ineffective assistance of counsel
is not sufficient to avoid a procedural default; Johnson
No. 06-2458                                                     9

must have “identif[ied] the specific acts or omissions of
counsel that form the basis for [her] claim of ineffective
assistance.” Momient-El v. DeTella, 118 F.3d 535, 541 (7th
Cir. 1997) (internal quotation marks omitted). Thus,
Johnson cannot argue one theory to the state courts and
another theory, based on different facts, to the federal
court. Everett v. Barnett, 162 F.3d 498, 502 (7th Cir. 1998)
(failing to argue in state court that counsel was ineffec-
tive for not calling a certain witness resulted in default,
even though petitioner had previously argued that other
witnesses should have been called by counsel); see also
Stevens v. McBride, 489 F.3d 883, 893-94 (7th Cir. 2007);
United States ex rel. Bell v. Pierson, 267 F.3d 544, 555 (7th Cir.
2001); Whitehead v. Cowan, 263 F.3d 708, 730 n.5 (7th Cir.
2001). Yet that is essentially what she did here.
  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 coun-
sel. 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.3 This


3
  In handwritten attachments to her habeas petition, Johnson
referred only to witnesses Hardrick and Taylor, not Brown
and Smith. She claimed that Hardrick and Taylor committed
perjury at her trial, violating her right to due process. The
district court interpreted this as a separate claim for relief—a
claim she raised in her state postconviction petition but later
                                                   (continued...)
10                                                No. 06-2458

appears to be an accusation of misconduct by the prosecu-
tion, 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 constitu-
tional 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.
  The other two theories of ineffective assistance of counsel
asserted in state court and now argued belatedly on
appeal—counsel’s failure to develop expert evidence on
the effect of the drugs and alcohol in Holzendorf’s
system and counsel’s failure to explore the effect
Holzendorf’s murder conviction had on Johnson’s state
of mind—were not pursued in the habeas petition at all.
Instead, Johnson asserted that her counsel “failed to
discuss the judicial system” with her, thereby leaving
her ignorant of such concepts as bench trials, plea
bargains, and the possibility of a reduction in the charge



3
  (...continued)
abandoned. Consequently, the claim is defaulted because
she failed to pursue it through one full round of state review.
Picard, 404 U.S. at 275-76; Lewis, 390 F.3d at 1025.
No. 06-2458                                               11

to second-degree murder. In other words, she did not
allege that her counsel was ineffective for failing to
develop certain evidence at trial, but that her counsel
was ineffective for failing to explain how she could have
bargained for a lesser charge and avoided a trial altogether.
  Although we construe pro se petitions liberally, Lewis,
390 F.3d at 1027, this principle cannot help Johnson here.
Her habeas petition simply cannot be stretched to en-
compass the ineffective-assistance-of-counsel claims she
presented to the state courts and now attempts to recap-
ture on appeal. We note that Johnson’s state-court
postconviction petition—also filed pro se—described in
some detail the very grounds of ineffective assistance
of counsel that she failed to assert in the district court.
This suggests she did not lack the knowledge or ability
to include these claims in her habeas petition.
  Johnson has not attempted to establish cause and preju-
dice to excuse the procedural default, nor has she argued
that our failure to consider her claims would result in a
fundamental miscarriage of justice. Even if she could
overcome these hurdles, she would not prevail. Under
the Antiterrorism and Effective Death Penalty Act of 1996,
we cannot grant habeas relief unless the state court’s
decision was contrary to or an unreasonable application
of clearly established federal law. 28 U.S.C. § 2254(d);
Wiggins v. Smith, 539 U.S. 510, 520 (2003); Johnson, 518
F.3d at 456. “This is a difficult standard [for habeas peti-
tioners] to meet; ‘unreasonable’ means ‘something like
lying well outside the boundaries of permissible differ-
ences of opinion.’ ” Jackson v. Frank, 348 F.3d 658, 662 (7th
12                                                  No. 06-2458

Cir. 2003) (quoting Hardaway v. Young, 302 F.3d 757, 762
(7th Cir. 2002)).
  Here, the Illinois Appellate Court rejected Johnson’s
ineffective-assistance claims based on its conclusion that
she had not established prejudice under Strickland. More
specifically, the court concluded,
     In light of the overwhelming evidence of guilt, includ-
     ing testimony from Eugene Hardrick, an eyewitness
     who, from 10 feet away, saw defendant shoot
     the unarmed victim[,] and defendant’s confession in
     which she admitted to leaving the tire shop after an
     argument with the victim only to return with a hand-
     gun, defendant cannot show a reasonable proba-
     bility that but for these claimed errors the outcome
     of her bench trial would have been different.
People v. Johnson, No. 1-03-0998, slip op. at 9-10 (Ill. App. Ct.
Aug. 19, 2004). This analysis reflects a correct statement of
the Strickland standard for prejudice, and the court’s
conclusion lies well within the boundaries of permissible
differences of opinion. That is, it is a manifestly reason-
able application of the Strickland standard to the
specifics of Johnson’s case.
                                                     A FFIRMED.




                             7-27-09
