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Kevin D. Johnson v. Richard B. Gramley

Kevin D. JOHNSON, Petitioner-Appellant, v. Richard B. GRAMLEY, Et Al., Respondents-Appellees

Johnson v. Gramley, 929 F.2d 350 (7th Cir. 1991)
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Court
Court of Appeals for the Seventh Circuit · U.S. Courts of Appeals
Decided
April 8, 1991
Docket
No. 89-3795
Judges
Flaum, Kanne, Posner
Citations
929 F.2d 3501991 WL 466611991 U.S. App. LEXIS 5626

Opinion — Posner

POSNER, Circuit Judge.

Kevin Johnson, a state prisoner, filed a petition for habeas corpus, 28 U.S.C. § 2254 , which the district judge dismissed under Rule 4 of the Rules Governing Section 2254 — a rule that authorizes the summary dismissal of a frivolous such petition. But then the judge — without explanation— granted Johnson a certificate of probable cause, thus certifying that Johnson had a non-frivolous ground of appeal. 28 U.S.C. § 2253 . Without such a certificate, Johnson, an indigent, could not have appealed.

If Johnson had a nonfrivolous ground of appeal, how could his petition have been frivolous? There is (contrary to the suggestion in Hendricks v. Vasquez, 908 F.2d 490, 492 (9th Cir.1990) — a suggestion based, we respectfully suggest, on a misreading of Dory v. Commissioner of Correction, 865 F.2d 44, 46 (2d Cir.1989)) an answer to this question. The judge might think a suit frivolous, yet not be sure we would agree. After all, it is not unknown for an appellate court to disagree with a trial court’s determination of frivolousness — even to the point of reversing that court, as in Smith-Bey v. Hospital Administrator, 841 F.2d 751, 759 (7th Cir.1988). Nevertheless, there is sufficient tension between dismissing a suit as frivolous and granting a certificate of probable cause to make it a good practice for a district judge who issues such a certificate after dismissing a suit as frivolous to state, however briefly, his reasons for acting so. Then we will know what weight to give the dismissal and the certificate. We urge the district judges of this circuit to follow this practice.

The certificate of probable cause having been granted, we proceed to the merits of the appeal.

Barefoot v. Estelle, 463 U.S. 880, 893 , 103 S.Ct. 3383, 3394 , 77 L.Ed.2d 1090 (1983). Here we can be even briefer. Johnson challenges the sufficiency of the evidence to convict him, but he does this by expressing his disagreement with the state trial judge’s decision to believe one of the eyewitnesses against him. We are given no basis to suppose that the trial judge was irrational to credit this witness’s testimony; so we must affirm.

Jackson v. Virginia, 443 U.S. 307, 319 , 99 S.Ct. 2781, 2789 , 61 L.Ed.2d 560 (1979).

AFFIRMED.

How later courts describe this case

Explanatory parentheticals written by citing courts — 1 in all; the most informative distinct ones are shown.

Cited by 14 cases

View all citing references →
1991: 11992: 41993: 51994: 11995: 11998: 12016: 119912026peak 1993 · 5

Relies on it most ⓘ

  1. James Small, Jr. v. Superintendent Jeff Endicott and Kenosha County Circuit Court, 1998 F.2d 411 (7th Cir. 1993)
  2. United States v. Shontay Dessart823 F.3d 395 (7th Cir. 2016)
  3. Alvin Love v. Norman Butler952 F.2d 10 (1st Cir. 1991)
  4. Jarvis Lee Tolefree v. Richard D. Cudahy49 F.3d 1243 (7th Cir. 1995)
  5. Ferguson v. McCaughtry809 F. Supp. 666 (E.D. Wis. 1992)
  6. Lorenzo Turner v. Richard B. Gramley and Roland Burris, 2952 F.2d 1398 (7th Cir. 1992)

Most recent

  1. United States v. Shontay Dessart823 F.3d 395 (7th Cir. 2016)
  2. Jeff House v. Jack Duckworth142 F.3d 439 (7th Cir. 1998)
  3. Jarvis Lee Tolefree v. Richard D. Cudahy49 F.3d 1243 (7th Cir. 1995)
  4. Daryl A. Schultz and Norita J. Schultz v. Diversified Financial Planners Incorporated19 F.3d 22 (7th Cir. 1994)
  5. Heimermann v. McCaughtry838 F. Supp. 392 (E.D. Wis. 1993)
  6. Adrian Lomax v. Karl Brekke and Donald Gudmanson4 F.3d 997 (7th Cir. 1993)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 5

DepthCaseCited by
Jackson v. Virginia, 443 U.S. 307 (1979) 74,130
Barefoot v. Estelle, 463 U.S. 880 (1983) 4,309
Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990) 687
Smith-Bey v. Hosp. Adm'r, 841 F.2d 751 (7th Cir. 1988) 141
Rowland Dory v. Comm'r of Corr. of the State of N.Y. & Attorney Gen. of the State of N.Y., 865 F.2d 44 (2d Cir. 1989) 29

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