Opinion
Case No. 97 C 3011.
September 28, 2000.
MEMORANDUM OPINION AND ORDER
Petitioner Orville Miller, a prisoner at Stateville Correctional Center in Joliet, Illinois, brings this petition for writ of habeas corpus under 28 U.S.C. § 2254. He makes 18 claims arguing that his continued confinement is illegal. Respondent Dwayne Clark (Clark), Stateville's warden, contends that procedural defaults collectively bar most of petitioner's claims. Respondent then argues that the remaining counts either do not establish cognizable federal claims or fail on their merits. For the reasons set forth below, all the claims do fail and the petition is denied.
In their briefs, petitioner and respondent count 44, 83 and various other figures as the total number of claims. We are not sure from where the parties derived these numbers. After examining the petition and combining redundant claims, we have identified 18 distinct allegations:
1. references to gang association;
2. references to co-defendants' prior trial;
3. comments during closing arguments;
4. denial of confrontation regarding whether victim was carrying a gun;
5. insufficient evidence to prove guilt beyond reasonable doubt;
6. admission of officer's testimony about witness' out of court identification of defendant;
7. admission of rebuttal evidence about omitted address;
8. references to defendant's prior trial;
9. improper consecutive sentences;
10. multiple convictions for the same acts;
11. longer sentence as punishment for not pleading guilty;
12. disparate sentence compared to co-defendants;
13. state's use of perjured testimony;
14. search warrant based on perjured testimony;
15. use of non-pattern jury instructions;
16. refusal to give a circumstantial evidence instruction;
17. references to the victim's paralysis;
18. ineffective assistance by trial and appellate counsel.
For brevity, we will frequently refer to these claims as numbered here.
Clark has succeeded George DeTella as the Stateville warden. We substitute him as the named respondent.
BACKGROUND
The events underlying this case took place nearly twenty-five years ago, on November 8, 1975. Teddy Parrish met Opel Johnson in the park. While walking with her, Parrish brandished a gun, demanded her money and fondled her. Afterwards, she told her brother Garfield Johnson (Johnson) about the incident. Later that evening, Johnson and a friend confronted Parrish and three of his friends, including petitioner. In the end, petitioner and Parrish allegedly shot Johnson eight to ten times, mostly in the back, leaving him paralyzed.
A jury in Cook County Circuit Court convicted petitioner of attempted murder and aggravated battery in January 1979. Petitioner appealed on nine separate grounds. The Appellate Court affirmed on the merits, 101 Ill. App.3d 1029 (1st Dist. 1981). The Illinois Supreme Court denied his petition for leave to appeal, which included only the gang association ground. Petitioner then sought relief under the Illinois Post-Conviction Hearing Act, 725 ILCS 5/122-1 et seq. Again, he filed a supplemental petition pro se, raising mostly the same arguments presented here. The Circuit Court, Appellate Court and Illinois Supreme Court all rejected these claims. Counsel withdrew while the post-conviction petition was pending in the appellate court, and petitioner has continued pro se to this point.
Counsel raised eight grounds and petitioner added one in a pro se supplemental brief.
The petition section listing petitioner's claims refers to a set of attached pages. These pages appear to be a photocopy of his supplemental petition for post-conviction relief from state court, with case citations redacted.
The habeas petition indicates that Thomas Geraghty acted as petitioner's counsel on the post-conviction relief appeal. But the record reveals that Geraghty represented petitioner in his appeal from a different conviction, not the present one.
Petitioner filed this petition on April 24, 1997. We previously held that this filing was timely under the Anti-terrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2244(d)(1). See minute order, Feb. 25, 1998.
DISCUSSION
I. Procedural Default
The state argues that many of these claims are barred under the doctrine of procedural default. We will consider four possible types: failure to exhaust state remedies; failure to raise a claim in state court; failure to present a claim as a constitutional issue; and independent state grounds.
It is well established that "[b]efore a federal court may review the merits of a claim raised by a state prisoner in a habeas petition, the petitioner must fulfill the procedural requirements set by state law for seeking judicial review in the state courts." Lemons v. O'Sullivan, 54 F.3d 357, 360 (7th Cir.), cert. denied, 516 U.S. 993 (1995). Procedural default of a claim under § 2254 depends on a state's internal law: "failure to present a claim at the time, and in the way, required by the state is an independent state ground of decision, barring review in federal court." Hogan v. McBride, 74 F.3d 144, 146 (7th Cir. 1996). Procedural default occurs when the petitioner fails to raise his claims appropriately before the state courts, whether on direct review or in a post-conviction proceeding. Farrell v. Lane, 939 F.2d 409, 411 (7th Cir.), cert. denied, 502 U.S. 944 (1991). Alternatively, procedural default occurs when the state court clearly relies on a state procedural bar as the grounds for its denial of relief. Caldwell v. Mississippi, 472 U.S. 320, 327 (1985). A petitioner may raise procedurally defaulted claims in a habeas proceeding only if he can demonstrate cause for the default and prejudice resulting from the default, or that failure to consider his claim will result in a "fundamental miscarriage of justice."Cawley v. DeTella, 71 F.3d 691, 695 (7th Cir. 1995).
First, we consider whether petitioner properly exhausted his state remedies, because failure to do so would bar the entire petition. The state, in its brief filed December 15, 1998, conceded exhaustion. Response at ¶ 13. On June 7, 1999, however, the United States Supreme Court handed down O'Sullivan v. Boerekel, 119 S.Ct. 1728 (1999), reversing 135 F.3d 1194 (7th Cir. 1998). Under Boerckel, a habeas petitioner must have given state courts one full opportunity to examine his claims, including discretionary appeals such as the Illinois Supreme Court. The only issue petitioner raised on his initial petition to the Illinois Supreme Court was claim 1, suggesting Boerckel would bar claims 2-18 if it applies.
But should we apply Boerekel? It clearly has retroactive effect. See, e.g., Tompkins v. Cowan, 1999 WL 1023927 (N.D. Ill. Nov. 8, 1999);Bradford v. Gilmore, 2000 WL 549489 (N.D. Ill. May 1, 2000). Respondent, however, did not raise the argument, probably because he filed his response six months before Boerekel was announced. In fact, at the time respondent filed, the Seventh Circuit's Boerkel opinion, holding that a prisoner need not take discretionary appeals to the Illinois Supreme Court to preserve his habeas claims, was circuit precedent. Despite the change in controlling law, this constitutes waiver by the state. See Hernandez v. Cowan, 200 F.3d 995 (7th Cir. 2000). In Hernandez, the Seventh Circuit explained that the state should have raised the Boerekel issue in its answer, despite circuit precedent to the contrary, because a circuit split made Supreme Court review foreseeable. Id. at 997. By the time respondent filed his answer in this case, the Court had already granted certiorari in Boerekel, 119 S.Ct. 508 (Nov. 16, 1998). Respondent should have raised the argument, and has therefor waived any default based onBoerekel.
Alternatively, even if this did not constitute waiver and the court considered the issue sua sponte, there would still be no default. While petitioner only sought Illinois Supreme Court review of one claim on direct appeal, he alleges that he also petitioned the Illinois Supreme Court for post-conviction reliefs and included all his current claims. Because this gave the state courts one full opportunity to fix any constitutional errors, it is sufficient to avoid default. For example, in White v. Godinez the defendant had not petitioned the Illinois Supreme Court at all on direct appeal, but did so for post-conviction relief. See White v. Godinez (White I), 143 F.3d 1049, 1052 (7th Cir. 1998), vacated 199 S.Ct. 2335 (1999). On remand, the Seventh Circuit found those claims raised in the post-conviction petition were not defaulted. White v. Godinez (White II), 192 F.3 d 607, 608 (7th Cir. 1999). Here, petitioner petitioned the Illinois Supreme Court for direct review on one claim, and for post-petition relief on all claims. So Boerekel would not bar his petition regardless of whether the state has waived.
Respondent disputes this claim. Response at ¶ 11, Petitioner correctly points out, however, that the state has not offered any evidence, such as an affidavit from the clerk, to support its contention. Reply at ¶ 14. The burden is on the state to prove default. See Gomez v. Acevedo, 106 F.3d 192, 196 n. 4 (7th Cir. 1997);Bloyer v. Peters, 5 F.3d 1093, 1097 (7th Cir. 1993). Absent any evidence to the contrary, we accept that Petitioner did petition the Illinois Supreme Court and assume he raised the same arguments as in his brief below.
Second, respondent contends petitioner did not properly raise his claims in state court. Response at p. 6. With two exceptions, we disagree. He did raise issues 1-9 on direct appeal, and raised all 18 in his post-conviction petitions. See FN 4, supra. Normally, petitioner's failure to raise counts 10-18 on direct appeal would default them. But petitioner also alleges he had inadequate appellate counsel. "[A] claim for ineffective assistance of appellate counsel cannot be raised on direct appeal and is appropriate in a post-conviction petition. In addition, if a petitioner alleges that appellate counsel was ineffective, the court may consider issues not raised on direct appeal that petitioner claims effective counsel would have raised." United States ex rel. Hoard v. Gilmore, 1999 WL 51794 at *3 (N.D. III. Jan. 30, 1999), citing People v. Coleman, 168 Ill.2d 509, 522 (1996); see also Perry v. Fairman, 702 F.2d 119 (7th Cir, 1983) (citing Illinois cases). To provide the state court with a fair opportunity for review, petitioner must present both the operative facts and the controlling legal principles. See Picard v. Connor, 404 U.S. 270, 277 (1971). Petitioner included all the factual and legal bases for his inadequate counsel claims in the post-conviction petition, so the state courts did have an opportunity to consider them.
The petition actually follows a regular pattern, setting forth an allegedly prejudicial error, followed by a claim that counsel's failure to raise the issue at trial or on appeal demonstrates his inadequacy. We will discuss the validity of these claims in the merits section.
The first exception is claim 13, in which petitioner asserts that the state knowingly used perjured testimony. He identifies three allegedly perjurious statements. First, at trial, Johnson testified that he saw Parrish shoot him; at a prior hearing, Johnson stated that he did not see the shots fired. Second, a police officer testified that while he was driving Johnson to the hospital, the victim identified petitioner as a shooter; petitioner claims to have records showing Johnson arrived at the hospital in a taxi, not a police car, suggesting that conversation could not have taken place. And third, Joy Crawford testified that she saw the shooting, testimony she allegedly later recanted. Obviously not every discrepancy in witness' testimony is perjury. There are many possible explanations, about which we will not speculate. Petitioner had every opportunity to seek contrary evidence and to confront the witnesses with it at trial. Counsel did, in fact, cross examine Johnson about whether he saw the shooter and elicited the contradiction. See Miller, 101 Ill. App.3d at 1032. The jury apparently credited the identification anyway. Moreover, there is still no actual proof of perjury in the record. For example, petitioner has not produced these hospital records that purport to contradict the victim's testimony, even during his post-conviction hearing, see People v. Miller, No. 83-0231 at 2 (Ill.App. 1st Dist. Aug 5, 1987). And despite the petition's references to affidavits and a recantation, there is no such evidence in the record. Petitioner's assertions that the prosecutors knew these statements to be false when offered, based on the record before us, amount to nothing more than conjecture. Because he did not present his purported evidence to the state courts, the state had no opportunity to correct any errors and federal relief is barred. Claim 13 is denied.
The second exception is claim 14, which alleges the state used perjured testimony to secure his arrest warrant. Specifically, petitioner refers to Johnson's alleged police car identification. This claim fails for the same reason as claim 13. Because petitioner did not present his evidence to the state court on post-conviction review, he cannot present it here. Claim 14 is denied.
Turning to the third type of procedural default, respondent claims petitioner did not present claims 6-8 to the state courts as constitutional questions. We agree. To properly present a constitutional claim, petitioner must "(1) rely on pertinent federal cases employing constitutional analysis; (2) rely on state cases applying constitutional 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).
Claims 6-8 are evidentiary questions, not constitutional ones; and they were presented to the state courts as such. On direct appeal, petitioner's brief did not cite constitutional provisions or federal cases; nor did it mention due process. See Respondent's Exhibit B at 29-39. The state cases cited considered these issues as evidentiary, not constitutional ones; and evidentiary issues are not within the mainstream of constitutional litigation. Petitioner's post-conviction petition, at ¶¶ 38-40, made a bare reference to the Fourteenth Amendment, but did nothing more than incorporate his state law-reliant appellate brief. Because the state courts never had an opportunity to address these claims as constitutional issues, they are barred from federal review. Claims 6-8 are denied.
Fourth, respondent asserts that the state courts rejected petitioner's claims on independent state grounds. The record includes the two state appellate court opinions, from direct review and post-conviction relief, but no opinions from the circuit court or Illinois Supreme Court. The direct appeal decided the nine claims on their merits. The post-conviction opinion only addressed two claims: trial counsel's failure to challenge the indictment, and post-conviction counsel's failure to introduce the hospital records that would have contradicted Johnson's police car identification. The former is not included in the current petition, so it is moot; the court decided the latter on its merits, so it is not defaulted. Beyond these, the appellate court made a nebulous reference to "matters outside the scope of the present record." People v. Miller, No. 83-0231 at 2 (Ill.App. 1st Dist. Aug 5, 1987). We are unclear what this means. To bar federal review, an independent state ground must be explicit. See Coleman v. Thompson, 501 U.S. 722, 735 (1991). We cannot tell from the record what, if any, procedural infirmities prevented the state courts from addressing petitioner's claims. So we decline to bar federal review on these grounds.
II. Non-cognizable claims
Respondent next argues that the petition does not raise cognizable federal claims. This argument largely parallels the contention above that Petitioner failed to present certain claims as constitutional issues. To state a federal claim, the prisoner must show that his detention violates the constitution, laws or treaties of the United States. See Kurzawa v. Jordan, 146 F.3d 435, 440 (7th Cir. 1998). Federal courts cannot review whether states are properly enforcing their own laws. Id. We construe petitioner's allegations liberally, because pro se litigants are held to "less stringent standards than formal pleadings drafted by lawyers."Henderson v. Sheahan, 196 F.3d 839, 845 (7th Cir. 1999). Petitioner makes repeated allegations that various rulings violated his constitutional rights, including due process, equal protection, effective counsel and a fair trial. Where his factual allegations present a colorable constitutional question, even absent constitutional citations, we will consider the merits.
Respondent raises the non-cognizable claim argument generally as to the entire petition, and specifically argues two claims. First, respondent argues that there is no federal right to post-conviction counsel. But petitioner has not alleged inadequate post-conviction counsel; respondent's arguments on that point are moot. Next, the state challenges claim 9, correctly arguing that there is no federal prohibition against consecutive sentencing. This claim is merely challenging the state court's application of state law. This does not present a cognizable federal claim. Claim 9 is denied.
Four other claims also fail to state a federal claim. Count 12 asserts that the trial judge violated petitioner's equal protection rights by sentencing him more severely than his co-defendants. State law grants the trial judge wide discretion in sentencing, and the judge thoroughly explained his reasoning for the extended sentence. Feb. 9, 1979 transcript at 340-52 (quoting statute). Again, a federal court cannot review applications of state law. And there is no allegation that the sentencing judge discriminated against petitioner on any ground prohibited by the equal protection clause. There is no federal basis for relief. See Steward v. Gilmore, 80 F.3d 1205, 1214 (7th Cir. 1996). Claim 12 is denied.
Claims 15 and 16 challenge the trial judge's instructions to the jury. There is no constitutional requirement to use the state's pattern instructions, an instruction about circumstantial evidence or any particular instruction. The petition fails to explain how the given instructions violated his constitutional rights; nor does it present the instructions' text for us to examine. Petitioner must do more than just invoke the magic words "due process," He must provide legal theory explaining how the instructions violated his federal constitutional rights. See Moleterno v. Nelson, 114 F.3d 629, 634-35 (7th Cir. 1997). Claims 15 and 16 are denied,
Claim 17 asserts that the trial court improperly permitted testimony about the extent of the victim's injuries — he was paralyzed. This is merely a state evidentiary rule. It does not create any constitutional right and provides no basis for federal relief Claim 17 is denied.
III. Merits
Because petitioner filed his petition after April 24, 1996, we must apply the new AEDPA standards for habeas review. See Lindh v. Murphy, 521 U.S. 320 (1997). A federal court may only intervene in a matter previously adjudicated on the merits by a state court if the decision "was contrary to, or involved an unreasonable application of, clearly established federal law as determined by" the Supreme Court. 28 U.S.C. § 2254(d)(1). Further, there is a strong presumption in favor of the state court's factual findings. See Kurzawa, 146 F.3d at 440.
Claims 1-3 challenge various evidentiary rulings. They also incorporate an element of prosecutorial misconduct, complaining that the prosecutor persisted with the objectionable conduct even after the court eventually sustained defense objections. Because of this overlap, and the similarity between the standards, we will set forth both and apply them concurrently.
Evidentiary rulings are generally state law issues. "The Due Process Clause does not permit the federal courts to engage in a finely tuned review of the wisdom of state evidentiary rules." Marshall v. Lonberger, 459 U.S. 422, 438, n. 6 (1983). The petitioner bears a heavy burden in seeking habeas review:
To be of constitutional import, an erroneous evidentiary ruling must be so prejudicial that it compromises the petitioner's due process right to a fundamentally fair trial. This means that the error must have produced a significant likelihood that an Innocent person has been convicted. Indeed, because of this high standard, evidentiary questions are generally not subject to review in habeas corpus proceedings.Howard v. O'Sullivan, 185 F.3d 721, 723-24 (7th Cir. 1999) (internal citations omitted). Nonetheless, we must balance "the rights of criminal defendants under the sixth and fourteenth amendments to present evidence in their own defense and the state's "sovereign prerogative" to regulate the presentation of evidence in its courts." Cunningham v. Peters, 941 F.2d 535, 538 (7th Cir. 1991).
The threshold for prosecutorial misconduct is comparable. "[T]he petitioner . . . must establish that the prosecutorial misconduct `so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" United States ex rel Gonzalez v. Thornton, 1999 WL 92902 (N.D. III. Feb. 17, 1999), quoting Darden v. Wainwright, 477 U.S. 168, 181 (1986). Applying these rules, we find petitioner's objections fall well short of the constitutional standards. None of these rulings created a fundamentally unfair trial, and there is nothing in the state courts' analysis that constitutes an unreasonable application of federal law.
Claim 1 complains about the prosecutors' frequent attempts to portray petitioner as a gang member. The trial judge, however, sustained most of defense counsel's objections to this line of questioning. Based on the excerpts in petitioner's appellate brief, see Respondent's Exhibit B, it appears that the judge excluded all explicit references to a gang or organization. Apparently, petitioner believes this was insufficient, and that the jury was still tainted. The judge permitted questions showing petitioner's relationship with his co-defendants and how they frequently hung out together. The state appellate court held this evidence was relevant because the original dispute arose between the Johnson and Parrish; it was only logical for the state to offer evidence of petitioner's relationship with Parrish to demonstrate why petitioner might shoot someone on Parrish's behalf. We do not find this unreasonable. Considering that the judge excluded all the explicit references to a gang or organization, petitioner was not deprived of a fundamentally fair trial. Nor would the handful of prosecutor's statements cited in petitioner's brief `infect' the trial. Claim 1 is denied.
Claim 2 asserts that references to petitioner's co-defendants' trial prejudiced his trial. Again, petitioner overstates his claim. The trial judge allowed testimony that the co-defendants were in jail. but sustained defense objections and issued curative instructions whenever the prosecutor tried to connect that fact with the present crime. See, e.g., Respondent's Exhibit B at 29. The state appellate court found this permissible, and petitioner has cited no cases holding these sorts of comments to violate due process. Claim 2 is denied.
Claim 3 again attacks the prosecutor's conduct, this time objecting to comments made during closing argument. Petitioner's appellate brief cited four particular statements: 1) accusations that defense counsel suborned perjury; 2) suggestions that defense counsel felt compelled to put on a defense; 3) suggesting one of petitioner's friends tampered with witnesses; and 4) referring to petitioner as a coward. The appellate court found that the last three comments were appropriate as a matter of state law; and the first, although improper, did not constitute prejudicial error. We agree. The state court's findings are not unreasonable. The prosecutor may have been, (indeed, was), overzealous, but these comments amount to little more than name-calling. Some of the comments were objectionable, but they hardly deprived petitioner of a fundamentally fair trial. Claim 3 is denied.
Claim 4 alleges that petitioner was denied his right to confront his accuser and to put on his own defense. The victim had testified that he was not carrying a gun when petitioner allegedly attacked him. Petitioner wanted to present contrary evidence, but the trial court excluded this line of questioning as irrelevant. Petitioner maintains that because the state's case relies heavily on the victim having identified petitioner as the shooter, petitioner must be permitted to attack the victim's credibility. Perhaps this evidence would have helped the defendant. But the court found that whether the victim was carrying a gun was too tangential. Petitioner was still able to cross-examine witnesses about the identification, and to call his own witnesses to present an alibi. Applying the Cunningham balancing test, we find the court's refusal to permit this one tangential point did not create a fundamentally unfair trial. Claim 4 is denied.
Beyond evidentiary rulings and prosecutorial conduct, petitioner raises several other due process arguments. Claim 5 alleges that there was insufficient evidence to find petitioner guilty beyond a reasonable doubt. Petitioner may not find Garfield Johnson to be a particularly credible witness, but the jury apparently believed his testimony. We cannot second guess a jury's credibility determinations. With the eyewitness testimony, a rational jury could easily have convicted on the evidence presented. This satisfies the constitutional standard. Claim 5 is denied.
In claim 10, petitioner alleges he received multiple sentences for the same act. This arguably would violate due process. The jury indeed returned convictions for both attempted murder and aggravated battery, a lesser included offense. But the record reveals that petitioner was only sentenced for one crime, attempted murder. People v. Miller, No. 75-7363, transcript at 340-46 (Cir.Ct. Cook Cty. Feb. 9, 1979). Claim 10 is denied.
Next, he contends that the trial judge imposed a longer sentence because petitioner did not accept the state's plea offer and did not testify. This would arguably violate his right to a jury trial and against self incrimination. But he points to no facts in the record to support his claim. Count 11 is denied.
Finally, we turn to the merits of petitioner's inadequate assistance claim. Under Strickland v. Washington, petitioner must establish both deficient performance and actual prejudice. 466 U.S. 668, 687 (1984). We examine the attorney's performance for "reasonableness under prevailing professional norms." Id. at 688. Specifically when appellate counsel's conduct is in question, "only when ignored issues are clearly stronger than those presented, will the presumption of effective assistance of counsel be overcome." Gray v. Greer, 800 F.2d 644, 646 (7th Cir. 1986).
We find appellate counsel's performance was adequate. He raised eight issues on appeal and briefed them at great length. There is nothing in the record to suggest any of petitioner's additional claims would have fared any better. For example, the record flatly contradicts claims 10 and 11; and claim 13 had not been preserved at trial. Whatever potential these additional claims may have had in state court, none is "clearly stronger" than those counsel raised. And we are loathe to second-guess counsel's tactical decisions. Claim 18 is denied.
Consequently, even if claims 10-17 had survived above, they would now be barred. Petitioner raised claims these eight claims for the first time in his post-conviction petition, meaning they are completely dependant on the inadequate assistance claim. Because we found appellate counsel was adequate, his failure to raise them on direct review would be fatal.
CONCLUSION
Counts 13 and 14 were not properly presented in state court; counts 6-8, 10 and 11 are were not presented as constitutional claims; counts 9, 12 and 15-17 are do not establish cognizable federal claims; and counts 1-5 and 18 fail on their merits. The petition is therefor denied.