Opinion
No. 97 C 5703
February 11, 2000
MEMORANDUM ORDER AND OPINION
Following a bench trial in the Circuit Court of Cook County, Tony Adams was convicted and sentenced to 50 years imprisonment for the aggravated criminal sexual assault of Carol Chandler. The conviction was affirmed by the Illinois Appellate Court, and his petition for leave to appeal to the Illinois Supreme Court was denied. Subsequently, the conviction was again affirmed by the Illinois Appellate Court on Adams' petition for post-conviction review. The Illinois Supreme Court denied Adams leave to appeal the post-conviction review. Adams now petitions this court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Adams claims that: (1) he was denied effective assistance of counsel at trial because counsel failed to subpoena several witnesses for trial; (2) he was denied the effective assistance of appellate counsel because his appellate counsel did not file for a rehearing; (3) he was denied his right to an appeal, on direct appeal, when the Appellate Court did not individually address each of his grounds for appeal; (4) the trial court's reliance on media attention was an improper factor to consider in sentencing; (5) the trial court relied on improper factors and abused its discretion in sentencing defendant to an extended term of 50 years; and (6) he was denied effective assistance of post-conviction counsel when counsel failed to argue that his right to a trial was infringed. For the following reasons, Adams' petition for a writ of habeas corpus is denied.
BACKGROUND
Adams was convicted of aggravated criminal assault for attacking Carol Chandler. Adams grabbed Chandler in an elevator and tried to get her to perform sexual acts. When she refused, he began beating her. The attack lasted for twenty minutes and then Chandler escaped through the elevator doors. Adams continued to beat her with his fists outside the elevator. He then pried her jaws open and forced her to perform oral sex. Chandler finally escaped downstairs into a friend's apartment.
During the trial Carol Chandler, Chicago Police Officer Raymond Uchman, and Chicago Police Detective Richard Zuley testified for the prosecution. Adams testified in his own defense. During the sentencing hearing the trial court heard testimony from Officer Nicholas Senese of the Cook County Sheriffs Department. Officer Senese testified that, while being escorted into court on August 3, 1989, Adams grabbed Officer Myron Wares in a headlock and punched him in the face. Adams was criminally charged for the incident, but the charges were later dropped.
The trial judge found Adams to be "a very anti-social individual by his conduct." The trial judge felt that he had "an obligation to the people of this community" to impose an appropriate sentence, noted a lack of remorse in the defendant, and imposed an extended-term 50 year sentence.
Petitioner filed a direct appeal before the Illinois Appellate Court. The appeal presented two issues for review. First, whether complainant's testimony was sufficient to support a finding of guilty beyond a reasonable doubt. Second, whether the court relied on improper factor or abused its discretion in sentencing defendant to an extended term of 50 years.
An Appellate Court panel affirmed the conviction. The court noted that credibility assessments are determinations to be made by the trier of fact. Further, the court noted that discrepancies in complainant's testimony did not "diminish her claim of an oral sex act that defendant forced her to perform and the injuries that she received from him." Finally, the court referred to Detective Zuley's corroboration that defendant later made a statement about oral sex when in custody.
The panel indicated that the statutory sentence for aggravated criminal sexual assualt is not less than 6 years and not more than 30 years. Since Adams had plead guilty to armed robbery and home invasion in 1982, the Appellate Court found that he had committed a Class X felony which allowed for the imposition of an extended term. The extended term sentence for a Class X felony is not less than 30 years and not more than 60 years. The panel determined that the trial judge had not abused his discretion, because he sentenced Adams within the applicable range. The Supreme Court of Illinois subsequently denied Adams' petition for leave to appeal the Appellate Court ruling.
Petitioner filed a petition for a post-conviction hearing. Adams alleged that he was denied due process of law and effective assistance of counsel when trial counsel failed to subpoena several witnesses: first, Mona Campbell who allegedly would have testified that the alleged victim and petitioner were at her house together; secondly, complainant's doctors, who allegedly would have testified that she could not have received her injuries as a result of being hit on the head with a fist; thirdly, two security guards who allegedly would have testified that defendant and complainant entered the building together and signed the logbook together. Adams also alleged that the trial judge violated his First Amendment rights when he offered petitioner an 8 year sentence for pleading guilty but, following the trial, sentenced him to 50 years. Additionally, petitioner alleged that appellate counsel was ineffective because he did not bring the above claims of ineffective assistance of trial counsel. Finally, Adams argued that the trial judge should not have considered the pending charge for punching Officer Wares in sentencing.
The Public Defender, appointed to represent petitioner in the post-conviction hearing, filed a supplemental petition. This petition alleged that Adams had been denied his right to appeal, on direct appeal, when the Appellate Court failed to individually address each of his arguments that the trial court had considered improper sentencing factors. Additionally, the brief argued that petitioner had been denied effective assistance of appellate counsel when counsel filed a petition for leave to appeal in the Illinois Supreme Court instead of a petition for rehearing in the Appellate Court.
The Circuit Court Judge dismissed Adams' original petition and the supplemental petition. The Court found that the Appellate Court had clearly addressed the issue of an extended term sentence. The Court also found that there was no showing that appellate counsel had been ineffective. Further, the Court found that the Appellate Court had addressed the issue of whether defendant had been penalized for exercising his right to a trial. As to the remaining allegations, the court found they were conclusions which the affidavits did not support.
Adams appealed the Circuit Court decision. In the appeal, petitioner claimed ineffective assistance of post-conviction counsel because counsel failed to argue the meritorious claims in Adams' petition. Instead, post-conviction counsel argued that petitioner had been denied an appeal and the effective assistance of trial counsel. Adams argued that the meritorious claim was the fact that he was punished for exercising his right to a trial. Petitioner noted that his plea bargain offer was eight years, forty two years less than his final sentence. Adams argued that such a disparity reflected punishment for going to trial. Adams alleged that the failure of his post-conviction counsel to stress this argument lost him the appeal. Further, Adams alleged that this issue had never been addressed by the court on appeal.
The panel determined that the issue of whether Adams had been punished for exercising his right to a trial had been addressed and specifically rejected. Further, the Court determined that an unauthenticated copy of a four year old letter, which he relied on to show that he was originally offered an 8 year sentence, was not sufficient evidentiary support to justify an evidentiary hearing. Finally, the panel held that post-conviction counsel provided a reasonable level of assistance to Adams.
Adams sought a rehearing. He argued that the letter was sufficient evidence to justify an evidentiary hearing. Adams petition for rehearing was denied.
Adams sought leave to appeal from this decision to the Illinois Supreme Court. Adams indicated that the Court should grant review on the question of whether the letter was sufficient to make a substantial showing that his constitutional rights had been violated and necessitated an evidentiary hearing. The Supreme Court of Illinois denied the petition for leave to appeal.
DISCUSSION
A federal court may issue a writ of habeas corpus if a petitioner demonstrates that he is "in [state] custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254 (a); Moffat v. Gilmore, 113 F.3d 698, 702 (7th Cir. 1997); see also Del Vecchio v. Illinois Department of Corrections, 31 F.3d 1363, 1370 (7th Cir. 1994) (en banc) ("[F]ederal courts can grant habeas relief only when there is a violation of federal statutory or constitutional law."),cert. denied, 514 U.S. 1037, 115 S.Ct. 1404, 131 L.Ed.2d 290 (1995). The federal courts may not grant habeas relief under Section 2254 unless the state court's judgment "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was 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).
Before a federal court may review the merits of a habeas petition, a petitioner must: "(1) exhaust all remedies available in state courts; and (2) fairly present any federal claims in state court first, or risk procedural default." Bocian v. Godinez, 101 F.3d 465, 468 (7th Cir. 1996). "The habeas petitioner must present his federal constitutional claims initially to the state courts in order to give the state the `opportunity to pass upon and correct alleged violations of its prisoners' federal rights." McGowan v. Miller, 109 F.3d 1168, 1172 (7th Cir. 1997) (quoting Duncan v. Henry, 513 U.S. 364, 365, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995)).
I. Adams' claim that he was deprived of due process and the effective assistance of counsel due to counsel's failure to subpoena various witnesses for trial.
The procedural default hurdle forbids the federal courts from addressing claims that were not fairly presented to the state courts. Jones v. Washington, 15 F.3d 671, 675 (7th Cir.), cert. denied, 512 U.S. 1241, 114 S.Ct. 2753, 129 L.Ed.2d 870 (1994). Procedural default occurs either when a state court has declined to address a federal claim because the petitioner failed to satisfy an independent and adequate state procedural requirement,Coleman v. Thompson, 501 U.S. 722, 729-30, 111 S.Ct. 2546, 2554, 115 L.Ed.2d 640 (1991), or when the petitioner fails to present a claim to the state courts at the time and in the way required by the state. Hogan v. McBride, 74 F.3d 144, 146 (7th Cir. 1996).
In determining whether Adams forfeited or procedurally defaulted on any of his claims, we look solely to state law. As the Seventh Circuit has explained, "[f]orfeiture depends on state law, and it is accordingly essential to know whether the state courts have held that a procedural misstep is a forfeiture, or would so hold if a collateral attack were filed in state court."Hogan, 74 F.3d at 147. In requiring that "the habeas petitioner respect the structure of the state court system by complying with its rules and appellate scheme," District Courts are prohibited from reviewing issues that the petitioner failed to present in the course of the state proceedings. Cawley v. DeTella, 71 F.3d 691, 694 (7th Cir. 1995).
Petitioner claims that he was denied effective assistance of counsel at trial. "This court recognizes that under Illinois rules `a defendant who neglects to raise a claim of inadequate representation on direct appeal may not later assert that claim in a petition for post-conviction relief . . . [unless] the basis for the claim does not appear in the record.'" Farrell v. Lane, 939 F.2d 409, 411 (7th Cir. 1991) (quoting United States ex rel. Devine v. DeRobertis, 754 F.2d 764, 766 (7th Cir. 1985)), cert. denied, 502 U.S. 944, 112 S.Ct. 387, 116 L.Ed.2d 337 (1991). As in the facts in Farrell, the fact that witnesses should have been subpoenaed to testify at trial is information contained in the trial record. Therefore, Adams' failure to raise this issue on direct appeal waives his claim for ineffective assistance of trial counsel. Farrell, 939 F.2d at 411.
II. Adams claim that he was denied the effective assistance of appellate counsel on direct review because counsel did not seek a rehearing.
Adams' second claim is that he was deprived of the effective assistance of appellate counsel on direct review because counsel did not seek rehearing prior to seeking leave to appeal to the Illinois Supreme Court. Petitioner argues that counsel's representation fell below an expected standard because he did not seek a rehearing before the Appellate Court to correct errors made in the appeal. This issue was not fairly presented to the state court. Although petitioner is correct that his post-conviction hearing was his first opportunity to present this issue, Adams still must present the issue to the state courts. Illinois would now consider these claims waived because they were not pursued on appeal. Thus, federal habeas review is barred.Hogan, 74 F.3d at 146; Farrell, 939 F.2d at 411; Lemons v. O'Sullivan, 54 F.3d 357, 360 (7th Cir.), cert. denied, 516 U.S. 993, 116 S.Ct. 528, 133 L.Ed.2d 434 (1995) (noting that a claim of ineffective assistance of appellate counsel that is not raised in a petition for post conviction relief is procedurally defaulted).
III. Adams' claim that he was deprived of his right to appeal.
Adams third claim has also been waived. His argument appears to be that, if the appeal did not exhaustively address every issue individually, it is not a proper appeal. Since he believes that the Appellate Court ignored some of his arguments, he argues that his right to an appeal has been compromised. Adams post-conviction brief and reply both specifically abandon this argument in favor of the argument that he was punished for exercising his right to a trial. Thus, this claim is procedurally defaulted because it was not pursued on post-conviction appeal.Farrell, 939 F.2d at 411.
Furthermore, as noted by the government, the Appellate Court did address these issues. The Appellate Court found that the trial judge correctly determined the sentencing range because he correctly found that Adams had previously committed a Class X felony. The panel then noted that the trial judge's discretion would be reversed only upon a finding of abuse of discretion. The panel indicated that consideration of the possibility of rehabilitation and the trial judge's obligation to the community were proper factors to introduce in sentencing. Thus, the Appellate Court clearly considered Adams argument that the trial Judge had allowed improper factors to enter into his decision, and it found that the trial Judge had acted within his discretion. Even if Adams' third claim were not procedurally defaulted it would fail on the merits.
IV. Adams' claim that the trial judge relied on an improper factor in aggravation.
Adams claims that the trial judge inappropriately relied on the media attention to his case when determining Adams' sentence. Adams argues that this reliance violates the Due Process guarantees of the United States Constitution. This fourth claim is also procedurally defaulted. In his brief on direct appeal, petitioner referred only to the Illinois Constitution, not federal due process protection. "A habeas petitioner must provide the state courts with a fair opportunity to apply constitutional principles and correct any constitutional error committed by the trial court." United States ex rel. Sullivan v. Fairman, 731 F.2d 450, 453 (7th Cir. 1984). The habeas petitioner must alert the state court to any applicable federal grounds for the claim.Bocian v. Godinez, 101 F.3d 465, 469 (7th Cir. 1996). The petitioner did not fairly present the issue to the state court if his argument did not "(1) rely on pertinent federal cases employing constitutional analysis; (2) rely on state cases applying constitution analysis to a similar factual situation; (3) assert the claim in terms so particular as to call to mind a specific constitutional right; or (4) allege a pattern of facts that is well within the mainstream of constitutional litigation."Verdin v. O'Leary, 972 F.2d 1467, 1473-74 (7th Cir. 1992). Before the state court on direct and post-conviction appeal, petitioner referred to the Illinois Constitution, Article I, Section 11, which is titled "Limitation of Penalties After Conviction." This section indicates that penalties should be determined according to the seriousness of the offense and with the objective of rehabilitation. Petitioner did not rely on federal cases with constitutional analysis or state cases which applied his alleged federal constitutional claim to a similar situation. Adams' assertion of his right under the substantive Illinois constitutional section does not call to mind the Due Process protections of the federal constitution. Finally, this pattern of facts is not clearly within the mainstream of federal Due Process constitutional litigation. Thus, Adams does not satisfy any of the above criteria. Petitioner did not fairly present the due process issue before the state courts. Therefore, Adams' Due Process claim is procedurally defaulted.
V. Adams' claim that the trial judge relied upon other improper factors in aggravation.
Adams' claim is that the trial judge improperly relied on a pending case as an aggravating factor. He alleges that the trial judge relied on the testimony of a Cook County Sheriff at Adams' sentencing hearing. The testimony indicated that Adams physically assaulted a sheriff while in custody. This issue was not presented on direct appeal. In Adams post-conviction pro se petition he presented this issue, but he did not argue it in either brief Petitioner specifically indicated that his one meritorious issue on appeal was that he was punished for going to trial instead of accepting a plea bargain. Thus, Adams did not fairly present this issue to the state court, and it is procedurally defaulted. Verdin, 972 F.2d at 1473-74.
Further, as the Appellate Court panel noted on direct appeal, the trial judge sentenced Adams within the applicable range of an extended sentence. Under Illinois law, if a judge finds that the defendant has been convicted of the same or similar class felony or a greater class felony within ten years, he has a justification to impose an extended sentence. 730 ILCS § 5/5-5-3.2(b)(1). The sentencing court may search anywhere within reasonable bounds for facts which tend to aggravate or mitigate the offense, inquire into his moral character, mentality, habits, social environments, abnormal tendencies, age, or natural inclination to commit a crime. People v. Hartzol, App. 1 Dist. 1991, 165 Ill Dec. 112, 584 N.E.2d 291. Thus, the trial judge was acting within his discretion in considering this evidence.
VI. Adams' claim that his post-conviction counsel was ineffective.
Adams final claim is that his post-conviction counsel offered ineffective assistance of counsel because he did not argue that Adams was punished for going to trial. Adams argues that he was punished because of the disparity between the plea bargain offer, 8 years, and the final sentence, 50 years. We disagree. First, the sentence was within the proper range and at the trial judge's discretion within that range. Second, as the Supreme Court noted in Coleman v. Thompson, a petitioner cannot claim constitutional ineffective assistance of counsel in post conviction proceedings because there is no constitutional right to an attorney in post-conviction proceedings. Coleman, 501 U.S. at 752-53. Thus, even if Adams were correct about the ineffectiveness of the post-conviction counsel, this habeas provides no remedy because no constitutional right was implicated.
CONCLUSION
For all of the foregoing reasons, Tony Adams' petition for a writ of habeas corpus is denied. Petitioner's first five claim are denied because of his procedural defaults. Petitioner's sixth claim is denied on the merits.
It is so ordered.