Opinion
No. 99 C 4980.
March 14, 2001.
MEMORANDUM OPINION AND ORDER
Following a jury trial in the circuit court of Cook County, Petitioner Roosevelt Burrell ("Petitioner ") was convicted of two counts of attempted murder and one count of aggravated battery. He was sentenced to a total of 80 years imprisonment, including a 50-year term for the first attempted murder count, a 30-year consecutive term for the second attempted murder count and a 10-year concurrent term for aggravated battery. The Illinois Appellate Court affirmed the conviction but vacated the 30-year consecutive sentence, changing it to a 30-year concurrent term, and reduced the aggravated battery sentence from 10 years to 5 years concurrent, leaving a total sentence of 50 years imprisonment. Petitioner's subsequent post-conviction appeal was unsuccessful. Now incarcerated at the Tamms Correctional Center in Illinois, he brings this petition for habeas corpus pursuant to 28 U.S.C. § 2254, raising numerous claims. Because Petitioner's claims either fail on their merits or are procedurally defaulted, his petition is denied.
FACTUAL BACKGROUND
In reviewing a petition for writ of habeas corpus under 28 U.S.C. § 2254, a federal court presumes that the facts found by state courts are correct. 28 U.S.C. § 2254 (e)(1); See also Sumner v. Mata, 449 U.S. 539, 547 (1981). A petitioner has the burden to establish by convincing evidence that a state court's factual determinations are erroneous. See U.S. ex rel. Green v. Greer, 667 F.2d 585, 589 n. 6 (7th Cir. 1981). Burrell does not challenge the Illinois Appellate Court's factual findings in his petition. The court, therefore, adopts the facts set forth in People v. Burrell, 228 Ill. App.3d 133, 136, 592 N.E.2d 453, 456 (1st Dist. 1992).
A. Facts Presented at Trial
The facts presented at trial established that on December 31, 1986, at about 4:00 p.m., Pamela Rendels had a fight with her boyfriend, Marvin Stewart, at her home. See People v. Burrell, 228 Ill. App.3d 133, 136, 592 N.E.2d 453, 456 (1st Dist. 1992). Rendels testified that after the fight she went to a neighbor's home and telephoned the police to report the domestic disturbance. Id. When she returned home, Stewart was not there. Id. While Rendels was on her front porch waiting for the police, Petitioner, who had known Rendels for years, stepped up to the porch to greet her. Id.
At the same time, Chicago Police Officers Thomas Ward and Kevin Lucas responded to the domestic disturbance call. Id. When they arrived at 234 North Hoyne Street, Rendels' home, Petitioner and Rendels were on the front porch. Id. As the officers exited their vehicle, Petitioner spun around and fired a number of gun shots. Id. at 137, 592 N.E.2d at 456. Ward was struck once in the upper left chest through his safety vest and a second time in his right side. Id. Officer Lucas testified that he dove for cover when he heard the gunfire. Id. Later, he discovered that a bullet had passed through his winter jacket, his tie, and his shirt, and lodged itself in his safety vest just half an inch above his stomach. Id. at 137-38, 592 N.E.2d at 457.
Another witness, Tina Howard, a friend of both Rendels and Petitioner, testified that at the time of the incident she was outside an apartment building at 2029 West Lake Street. Id. at 138, 592 N.E.2d at 457. When she heard the shooting, she went inside to the seventh floor apartment of Ms. Holloway, whose son Terry is a friend of Petitioner's. Ten or twenty minutes later, Petitioner arrived at that same apartment, out of breath, and asked to use the telephone. Id. At that time, Howard saw that Petitioner had a gun under his sweater. Id. Later, from under a mattress in one of the bedrooms of Ms. Holloway's apartment, authorities recovered a gun identified by firearm examiner Donald Smith as the weapon used in the shooting of Officers Ward and Lucas. Id.
Officer Ward underwent surgery at Cook County Hospital. Id. at 137, 592 N.E.2d at 457. At trial, the treating physician was allowed to testify, over defense counsel's objection, that because of the severity of the wounds, Ward was classified as a "grade four," meaning that his injuries were life-threatening, but survival was possible. Id. at 137, 502 N.E.2d at 458. In addition, Ward testified that he received last rites at the hospital and that the Chicago Police Department later awarded him a blue star for being seriously injured in the line of duty. Id. at 138, 502 N.E.2d at 457.
During closing arguments, the prosecutors made a number of comments about the police officers' heroism and their oath to serve and protect. See id. at 145, 592 N.E.2d at 461. One of the prosecutors criticized defense counsel for suggesting that Officer Ward had lied, explaining that Officer Ward was a police officer who "took an oath to God to tell the truth." Common Law Record 425; see also Burrell, 228 Ill. App.3d at 145, 592 N.E.2d at 462. After the jury retired to deliberate, the officer's blood-stained and bullet-marked uniforms were sent to the jury room over defense objections. Burrell, 228 Ill. A pp. 3d at 143-44, 592 N.E.2d at 460-61.
B. Choice of Counsel at Trial
Petitioner had been in custody for almost eight months when, on August 27, 1987, he requested appointment of counsel other than the assistant public defender. Id. at 140-41, 592 N.E.2d at 459. Because he did not have a private attorney at that time, the trial court informed him that he was not allowed a substitution of appointed counsel without stating a reason for such a substitution and, therefore, denied his request. Id. On the day of trial, November 3, 1987, Petitioner again asked for a continuance to retain a private attorney, explaining that he had been introduced to an attorney who was ready to take his case but wanted three more days to prepare. Id. The trial court denied the continuance, stating that Petitioner had had plenty of time to hire a private attorney and adding that the attorney named had been in the courtroom that morning on another case, but had neither said anything to the trial court about Petitioner's case nor sought leave to file an appearance. Id.
The next day, November 4, before opening statements, Petitioner again requested a continuance to hire private counsel. Id. Petitioner explained that his new attorney was planning to be in court that morning, but had not appeared. Id. The motion for continuance was again denied and the trial continued that day. Id.
On December 18, 1987, Petitioner was convicted of aggravated battery and two counts of attempted murder. Id. at 135, 592 N.E.2d at 455.
PROCEDURAL HISTORY
Petitioner appealed his conviction to the Illinois Appellate Court. On appeal, Petitioner argued that:
(1) the trial court abused its discretion in denying his request to substitute retained counsel for appointed counsel; (2) he was denied a fair trial when the police officers' bullet-marked, blood-stained uniforms were sent to the jury room; (3) he was denied a fair trial by the prejudicial testimony concerning Officer Ward's injuries; (4) he was denied a fair trial by prosecutorial misconduct during closing argument; (5) the trial court denied him a fair trial or an effective closing argument by sustaining objections to proper comments in his closing argument; (6) his conviction for aggravated battery must be vacated under the one act one crime rule or, in the alter native, his sentence must be reduced or vacated and remanded; and (7) the trial court abused its discretion in imposing an extended sentence for one count of attempted murder or in making the sentences on the at tempted murder counts consecutive.
Id. at 136, 592 N.E.2d at 455-56. On March 31, 1992, the Illinois Appellate Court affirmed the conviction but vacated the consecutive 30-year sentence, changing it to a 30-year concurrent sentence, for a total of 50 years imprisonment. Id. at 148, 592 N.E.2d at 464. In addition, the court affirmed the aggravated battery conviction, but reduced the concurrent sentence from 10 to five years imprisonment. Id. at 148, 592 N.E.2d at 465.
Petitioner then filed a petition for leave to appeal to the Illinois Supreme Court. See Exhibit E, Respondent's Answer. In this appeal, he raised the following arguments: (1) the trial court abused its discretion in denying his request to substitute counsel; and (2) he was denied a fair trial by the prosecutor's improper appeals to the jurors' emotions. Id. at 2.
Included in the prosecutorial misconduct claim were the following arguments: (1) Petitioner was denied a fair trial when, over defense objection, the officer's blood-stained and bullet-marked uniforms were sent to the jury room; (2) he was denied a fair trial when evidence was admitted concerning the nature and extent of Officer Ward's injuries, that Ward was administered his last rites at the hospital, and that Ward was honored by the Chicago Police Department for sustaining serious injuries while on duty; and (3) he was denied a fair trial by improprieties during closing arguments. Id. at 10-11. Petitioner argued that the Appellate Court erred by not considering the cumulative impact of these appeals to the jurors' emotions. Id. at 11. The Illinois Supreme Court denied the petition without opinion on October 7, 1992. See Exhibit F, Respondent's Answer, People v. Burrell, No. 73642.
After the Supreme Court denied Burrell's Petition for Leave to Appeal, he filed a post-conviction petition on January 26, 1995, alleging that he was denied a fair trial by the State's knowing use of perjured testimony of Pamela Rendels and Tina Howard. Exhibit G, Respondent's Answer. Petitioner claimed that the assistant state's attorney threatened both Rendels and Howard that their children would be taken from them if they did not testify against him. Id. at 5. In response to the petition and the attached affidavits from Rendels and Howard, the Circuit Court of Cook County held a hearing to determine whether the witnesses had perjured themselves at trial. Exhibit K, Respondent's Answer, at 2. Rendels failed to appear for this hearing, but Tina Howard appeared and testified that she had lied at trial. See Exhibit H, Respondent's Answer. After the hearing, the judge dismissed the petition, explaining, "I have had an opportunity to see [Howard] now and at trial and I'm sure she is lying now. She's not truthful. I watched her demeanor. This whole scenario about her being threatened is nonsense." Id. at F-20-21. The court added that Rendels was the key witness who identified Petitioner as being at the scene and that she "did testify at trial and never recanted her testimony." Id. at F-21.
Petitioner filed a timely notice of appeal from the trial court's ruling. On April 18, 1997, appointed counsel sought leave to withdraw pursuant to Pennsylvania v. Finley, 481 U.S. 551 (1987). See Exhibit I, Respondent's Answer. On April 25, 1997, Petitioner filed a response to the Finley motion. See Exhibit J, Respondent's Answer. On August 21, 1997, the Illinois Appellate Court, First District, granted the Finley motion and affirmed the order of the Circuit Court of Cook County dismissing the petition for post-conviction relief. Exhibit K, Respondent's Answer.
On October 7, 1998, with leave of court, Petitioner filed a late petition for leave to appeal to the Illinois Supreme Court. In his petition, he argued: (1) he was denied effective assistance of post-conviction appellate counsel; (2) he was denied effective assistance of trial counsel; (3) he was denied due process and a fair trial by the prosecution's knowing use of perjured testimony; (4) he was denied effective assistance of post-conviction counsel; and (5) the trial court erred in dismissing his post-conviction petition. Exhibit L, Respondent's Answer. The Illinois Supreme Court denied the petition for leave to appeal on December 2, 1998. Exhibit M, Respondent's Answer, People v. Burrell, 181 Ill.2d 576, 706 N.E.2d 499 (1998).
On July 26, 1999, Petitioner filed this petition for writ of habeas corpus raising the following ten issues: (1) the trial court abused its discretion in denying his request to substitute counsel; (2) he was denied a fair trial when the trial court allowed the officer's uniforms to be sent to the jury room; (3) he was denied a fair trial when the jury heard testimony regarding the life-threatening nature of one victim's injuries; (4) he was denied a fair trial by the prosecutor's improper and prejudicial comments during closing arguments; (5) he was denied a fair trial when the trial court improperly sustained object ions to Petitioner's own closing; (6) he was denied due process and a fair trial by the prosecution's knowing use of perjured testimony; (7) he was denied effective assistance of trial counsel because counsel failed to raise the defense of involuntary intoxication and failed to interview several state witnesses; (8) the trial court erred in dismissing Petitioner's post-conviction petition; (9) Petitioner was denied effective assistance of post-conviction counsel when his attorney failed to use due diligence to find witnesses for the post-conviction hearing; and (10) he was denied effective assistance of post-conviction appellate counsel when the court allowed appointed counsel to withdraw. Petition for Writ of Habeas Corpus, at 10-30.
On October 24, 2000, Petitioner filed an amended petition for writ of habeas corpus claiming that pursuant to Apprendi v. New Jersey, 530 U.S. 406, 120 S.Ct. 2348 (2000), the trial judge acted improperly when he enhanced Petitioner's sentence based on the cruel and heinous nature of the crime without the jury first determining that the crime was cruel and heinous beyond a reasonable doubt. Motion to Amend Habeas Corpus Petition at 1. Petitioner argued that because the Supreme Court announced a new rule in Apprendi, he could not have raised this issue before habeas review. Id.
DISCUSSION
A. Standard of Review
Under § 2254 of the Anti-Terrorism and Effective Death Penalty Act, a prisoner is entitled to a writ of habeas corpus if he is being held under a state court judgment obtained in violation of the Constitution. 28 U.S.C. § 2254; Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 1504 (2000). The federal court will not grant a writ of habeas corpus with respect to any claim that was adjudicated on the merits in state court proceedings unless that state decision: (1) 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. Id. § 2254(d)(1) (2); Alvarez v. Boyd, 225 F.3d 820, 824 (7th Cir. 2000).
A federal court cannot reach the merits of a habeas corpus petition, however, unless Petitioner can show that he has exhausted his state remedies and avoided procedural default, Moleterno v. Nelson, 114 F.3d 629, 633-34 (7th Cir. 1997), or can show: (1) cause for failure to raise the claim, and actual prejudice resulting therefrom; or (2) that refusal to consider the defaulted claim would result in a fundamental miscarriage of justice. See Edwards v. Carpenter, 529 U.S. 446, 120 S.Ct. 1587, 1591 (2000); see also Wainwright v. Sykes, 433 U.S. 72, 87 (1977).
As addressed individually below, the court concludes that certain of Petitioner's claims are barred by procedural default and others fail on their merits.
B. Choice of Counsel Claim
Petitioner claims, first, that the trial court abused its discretion when it denied his request to substitute retained counsel for appointed counsel. Although Petitioner has not specifically identified it as such, the court understands this as a claim under the Sixth Amendment. Specifically, after Petitioner had requested and been denied appointment of counsel other than the assistant public defender before trial, the trial court also denied his request to substitute retained counsel on the day of trial. Burrell, 228 Ill. App.3d at 140-41, 592 N.E.2d at 458-59. The court reasoned that Petitioner had had plenty of time to hire a private attorney and that the named attorney had not yet filed an appearance in the case, even though he had been in court that morning. Id. Petitioner claims that the trial court's denial of his requested continuance prevented him from being represented by counsel of his choice.
Under the Sixth Amendment, the accused is entitled to the assistance of counsel for his defense. U.S. CONST. amend. VI. The Supreme Court has held that the purpose of assistance of counsel "is simply to ensure that criminal defendants receive a fair trial." Wheat v. United States, 486 U.S. 153, 158 (1988) (citing Strickland v. Washington, 466 U.S. 668, 689 (1984)). Thus, in evaluating Sixth Amendment claims, "the appropriate inquiry focuses on the adversarial process, not on the accused's relationship with his lawyer as such." Wheat, 486 U.S. at 158. Indeed, the Court has rejected the claim that the Sixth Amendment guarantees a "meaningful relationship" between accused and his counsel. Morris v. Slappy, 461 U.S. 1, 14 (1983).
Under established federal law, a trial court has broad discretion in deciding whether to grant a motion for continuance to allow substitution of counsel. Id. at 11. Only an unreasoning and arbitrary insistence upon expeditiousness in the face of a justifiable request for delay violates the right to the assistance of counsel. Id. at 11-12.
In Petitioner's case, the Illinois Appellate Court first found that Burrell waived this issue by failing to raise it in his written motion for a new trial and, therefore, the trial court's denial of his requested continuance would be reviewed only for plain error. Id. at 142, 592 N.E.2d at 460. The court then found that no plain error had occurred: Petitioner's attorney had been appointed nine months prior to trial and was prepared to proceed; Burrell had ample time (eleven months) to retain private counsel; Burrell's purported retained attorney had not filed an appearance nor even mentioned the case when he appeared in the courtroom on another case on the day of trial; and the attorney failed to appear on November 3, 1987, after Burrell said he would appear. Id. at 143, 592 N.E.2d at 460. The court therefore found that the trial court did not abuse its discretion by denying the continuance. Id.
On habeas review, the court considers only whether the appellate court's decision was (1) 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)(1) (2); see also Alvarez v. Boyd, 225 F.3d 820, 824 (7th Cir. 2000). Because, under federal law, the court has broad discretion in deciding to grant a motion for continuance and because the decision not to allow Petitioner a continuance to retain counsel was not an unreasoned and "arbitrary insistence upon expeditiousness in the face of a justifiable request for delay," Morris, 461 U.S. at 14 (1983), this claim does not present grounds for habeas relief.
Illinois courts arguably recognize a more expansive right to counsel. Even under that standard, Petitioner's claim would fail. In Illinois, the constitutional right to counsel includes the right to be represented by retained counsel of one's choice, but that right is not absolute. See People v. Childress, 276 Ill. A pp. 3d 402, 410, 657 N.E.2d 1180, 1186 (1st Dist. 1995); People v. Little, 207 Ill. A pp. 3d 720, 723, 566 N.E.2d 365, 367 (1st Dist. 1990). Instead, the court must balance the right of a defendant to choose his or her counsel against the public need for efficient and effective administration of justice. Id. (citing People v. Robin son, 254 Ill. App.3d 906, 910, 626 N.E.2d 1242, 1246 (1st Dist. 1993)). To determine whether a trial court acted properly in denying a continuance, the court considers: (1) whether defendant's request appears to be an attempt to "temporarily thwart the administration of justice"; (2) whether evidence exists that new counsel is ready, willing, and able to take and proceed with the case; (3) whether defendant can articulate an acceptable reason for desiring new counsel; and (4) whether current counsel has represented defendant for a lengthy period of time prior to defendant's request for new counsel. Childress, 276 Ill. A pp. 3d at 411, 657 N.E.2d at 1186. An Illinois trial court does not abuse its discretion by denying a continuance when new counsel is unidentified or does not stand ready, willing, and able to make an unconditional entry of appearance on defendant's behalf. Childress, 276 Ill. App.3d at 411; 657 N.E.2d at 1186.
Petitioner's case is readily distinguished from those in which the courts have found an abuse of discretion in denying a continuance for substitution of counsel. See, e.g. Childress, 276 Ill. App.3d at 413, 567 N.E.2d at 1187-1188 (where private counsel appeared before the court asking to file an appearance on defendant's behalf and asked for a continuance to prepare for trial, trial court erred by denying the continuance); People v. Washington, 195 Ill. App.3d 520, 525-26, 552 N.E.2d 1067, 1070 (1st Dist. 1990) (where the court received a call from the retained attorney's secretary indicating that the attorney was retained but that he was unavailable that day and there was no evidence of any prior delay by defendant, the trial court should have allowed defendant a one week continuance to have his new attorney appear); People v. Young, 207 Ill. App.3d 130, 134, 565 N.E.2d 309, 311-12 (4th Dist. 1990) (trial court erred by denying private counsel's request to appear where defendant informed court that for the first time he was able to afford private counsel and had done so and counsel appeared that day after lunch, "willing and able to make an entry").
In this case, Petitioner's counsel did not appear in court on his behalf at any time and did not mention that he would be representing Petitioner, even though he was in court on the same day as Petitioner's trial date. The Illinois courts were not unreasonable in their conclusion that Petitioner was not entitled to a continuance.
C. Improper Appeals to the Jurors' Emotions
Petitioner next claims that he was denied a fair trial by the prosecutor's improper appeals to the jurors' emotions. Specifically, he challenges the trial court's decision to send the officers' uniforms to the jury room, the admission of testimony regarding the severity of Officer Ward's injuries, and the prosecutor's conduct during closing arguments.
Respondent incorrectly contends that Petitioner did not raise these claims in his petition for leave to appeal to the Supreme Court and, therefore, has procedurally defaulted on these claims. In fact, Petitioner did raise each of these claims under the general claim that "he was denied a fair trial by the prosecutor's improper appeals to the juror's emotions." See, Exhibit E, Petitioner's Petition for Leave to Appeal on Direct Appeal, No. 72642, at 10-11. The court may therefore address this claim on its merits.
On habeas review, any errors involving evidence presented to the jury are considered "trial errors." See Brecht v. Abrahamson, 507 U.S. 619, 628 (1993). Such an error can only be grounds for relief on habeas review if it had "substantial and injurious effect or influence in determining the jury's verdict." Id. at 637; Calderon v. Coleman, 525 U.S. 141, 145 (1998); Kotteakos v. United States, 328 U.S. 750, 776 (1946).
On direct appeal, the Illinois Appellate Court found that it was error to send the officer's uniforms to the jury room, but that this error was harm less. Burrell, 228 Ill. App. 3 d at 144, 592 N.E.2d at 461. The court noted, however, "there is no need for a new trial unless the defendant is prejudiced." Id. Here, the court concluded, Burrell was not prejudiced because the evidence of his guilt was "overwhelming." Id. That evidence included Rendels' testimony that she saw Petitioner shoot the officers, Officer Lucas' testimony that he saw Petitioner shoot at them, and Howard's testimony that she saw Petitioner with a gun shortly after the shooting.
The Illinois Appellate Court weighed the other evidence of Petitioner's guilt against any prejudicial effect suffered by sending the uniforms back with the jury during deliberations and concluded that such evidence did not affect the trial. Applying the Kotteakos harmless error standard, this court cannot say that the error of sending the uniforms back to the jury room had substantial and injurious effect in determining the jury's verdict in light of the strong evidence presented at trial. The Appellate Court did not, therefore, apply the law in a way that was contrary to, or involved an unreasonable application of, clearly established federal law when it found the error to be harmless.
The next two claims, that the court erred in admitting evidence that Officer Ward's injuries were life-threatening and that the prosecutor made improper comments during his closing, were waived by the Petitioner because he did not object to them at trial nor did he include them in his post-trial motion. For that reason, the Illinois Appellate Court noted that Burrell would be entitled to relief on this claim only if these errors constituted plain error. With respect to the testimony concerning Ward's injuries, the court found that "[s]ince the evidence showed overwhelmingly that defendant was guilty and the complained of testimony did not involve substantial rights" it was not plain error to admit such testimony. Burrell, 228 Ill. App.3d at 145, 592 N.E.2d at 461. With respect to the comments made in closing argument, the court found no prejudicial error in this case. Id.
Petitioner did object at trial to the specific reference to Ward's injuries as "grade four" but he did not object to any of the other evidence surrounding the injuries, nor did he object to any of this testimony, including the grade of the injury, in his post-trial motion.
Again, because of the strong evidence of Petitioner's guilt, this court cannot say that the evidence had a substantial and injurious effect on the jury's determination. The Appellate Court's analysis did not, therefore, involve an unreasonable application of the law.
D. Objection s Sustained During Defense Counsel's Closing Argument
Petitioner next argues that he was denied a fair trial because the trial court improperly sustained objections during defense counsel's closing argument. The court cannot consider this argument on its merits because Petitioner procedurally defaulted this claim.
In his petition for leave to appeal to the Illinois Supreme Court, Petitioner did raise the claim that he was denied a fair trial due to certain statements made by the Prosecutor in closing. He did not, however, raise the claim that he was denied a fair trial when the trial court sustained objections during his own counsel's closing argument. See Exhibit E, Respondent's Answer.
The procedural default inquiry focuses on whether the Petitioner's federal claims were "fairly presented" to the state courts. Verdin v. O'Leary, 972 F.2d 1467, 1474 (7th Cir. 1992). Procedural default occurs in one of two ways: (1) when a petition to the federal court includes claims that the petitioner failed to raise at the state level, see Momient-El v. DeTella, 118 F.3d 535, 540-41 (7th Cir. 1997); or (2) when the state court declines to address a claim because the petitioner fails to comply with a state procedural requirement, see Coleman v. Thompson, 501 U.S. 722, 729-30 (1991); Barksdale v. Lane, 957 F.2d 379, 382 (7th Cir. 1992). These requirements are "grounded in principles of comity; in a federal system, the States should have the first opportunity to address and correct alleged violations of [a] state prisoner's federal rights." Coleman, 501 U.S. at 731. For this reason, the doctrine applies "whether the default in question occurred at trial, on appeal, or on state collateral attack." Murray v. Carrier, 477 U.S. 478, 490-92 (1986).
Petitioner raised this claim on direct appeal, but he failed to raise it in his petition for leave to appeal to the Illinois Supreme Court. A habeas petitioner's failure to raise a claim on discretionary review to a state's highest court constitutes a failure to exhaust state court remedies. O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). If the time for raising such a claim has passed, as it has here, the petitioner has procedurally defaulted the claim. Id.
In cases where a petitioner has procedurally defaulted on any claims he raises in his habeas petition, federal courts may review those defaulted claims only if: (1) the petitioner shows cause for failure to raise the claim, and actual prejudice resulting therefrom; or (2) the petitioner shows that refusal to consider the defaulted claim would result in a fundamental miscarriage of justice, where a constitutional violation has resulted in the conviction of one who is actually innocent. See Edwards v. Carpenter, 529 U.S. 446, 120 S.Ct. 1587, 1591 (2000); see also Wainwright v. Sykes, 433 U.S. 72, 87 (1977). Petitioner has not raised any reasons that would constitute cause for failing to raise the claim; nor would a refusal to consider the defaulted claim result in a fundamental miscarriage of justice. Therefore, this court will not reach the merits of this claim.
E. Perjured Testimony
Petitioner next claims that he was denied due process of law and a fair trial when two of the state's witnesses perjured themselves on the stand. According to Petitioner, Pamela Rendels and Tina Howard perjured themselves at trial in response to threats that the state's attorney would take away their children if they did not testify against Petitioner. In Petitioner's post-conviction petition, he included affidavits from both Rendels and Howard stating that they had committed perjury at trial. In response to that petition, the trial court held a hearing to determine the truth of the allegations.
Rendels did not appear at the hearing. Howard, however, did testify. After the hearing, the Circuit Court dismissed the petition, concluding that her statements concerning alleged threats were "nonsense." Exhibit H, Respondent's Answer at F-20-21. The court added that Rendels, the key witness at trial, never recanted her testimony. Id. at F-21. For these reasons, the trial court rejected Petitioner's perjury claim.
Under § 2254 of the Anti-Terrorism and Effective Death Penalty Act, "a determination of a factual issue made by a State court shall be presumed to be correct." 28 U.S.C. § 2254(e)(1). The petitioner has the burden of rebutting this presumption of correctness "by clear and convincing evidence." Id. Where, as here, the state court found, after a hearing on the issue, that the witnesses did not perjure themselves, and Petitioner offers no new evidence to support the perjury claim, this court must defer to the findings of facts by the state court. This claim does not, therefore, provide grounds for habeas relief.
F. Ineffective Assistance of Trial Counsel
Petitioner next claims that he received ineffective assistance of trial counsel because his attorney failed to interview any of the prosecution's witnesses, including Pamela Rendels and Tina Howard, and because his attorney did not raise the defense of intoxication at trial. Respondent claims that Petitioner has procedurally defaulted on the claim that his counsel was ineffective for failing to interview witnesses because Petitioner failed to raise that claim in his original post-conviction petition, even though he later raised it in his petition for leave to appeal his post-conviction petition. Respondent argues, further, that Petitioner never raised the claim that his counsel was ineffective for failing to raise the defense of intoxication at any time in state court. Respondent is incorrect on both accounts.
Petitioner originally filed his own post-conviction petition in which he raised the claim of ineffective assistance of counsel at trial and on appeal. Subsequently, Petitioner was appointed counsel who filed an amended post-conviction petition on his behalf that omitted the ineffective assistance of counsel claim, raising only the claim that Howard and Rendels perjured themselves at trial. The Illinois Appellate Court, however, in its opinion affirming the trial court's denial of post-conviction relief, considered appointed counsel's subsequent petition as an additional petition rather than a superseding petition. Id. It therefore recognized that the issues before it were both whether the prosecution's witnesses perjured themselves at trial and whether Petitioner had been denied "the effective assistance [o]f counsel at trial and on appeal." Exhibit K, Respondent's Answer, Order of the Illinois Appellate Court, First District, No. 1-95-2930.
Petitioner's prose post-conviction petition is not part of the record before this court, but it appears that this claim of ineffective assistance of counsel identified both the failure to inter view several witnesses and the failure to raise the defense of intoxication. For example, Raymond Beck, who was appointed to represent Petitioner in his post-conviction appeal, wrote two separate letters to Petitioner in which he acknowledged that Petitioner had raised the claim that his trial counsel was ineffective for failing to raise the defense of intoxication in his original post-conviction petition. See, e.g. Exhibit L, Respondent's Answer, Letter from Beck to Burrell, April 7, 1997 (explaining that the case looks weak to him because, even though Burrell "alleged voluntary and in voluntary intoxication in [the] pro se petition" it was "not well documented"); see also Letter from Beck to Burrell April 18, 1997(explaining that he is with drawing from the case because there were no meritorious arguments but explaining to Petitioner "[i]f you could, for instance, develop your intoxication defense more, adding much more evidence than you presented in your petition, and could show that both trial and to counsel were in effective for failing to present such evidence, that might be a sustainable issue").
Unfortunately, though the trial court afforded Petitioner a post-conviction evidentiary hearing on his perjury claim, it did not mention the issue of ineffective assistance of counsel when it denied Petitioner's post-conviction petit ion. See Exhibit H, Respondent's Answer. Instead, it merely found that the witnesses had not perjured themselves at trial. Id. In affirming the trial court, the Appellate Court likewise did not mention the intoxication claim at all. See Exhibit K, Respondent's Answer. Instead, it found that because Defendant's perjury claims were deficient, any claim that counsel was ineffective for failing to inter view those witnesses must also fail. See Exhibit K, Respondent's Answer. The Supreme Court merely denied the petition without opinion. See Exhibit M, Respondent's Answer. Because Petitioner apparently did raise these claims, the court will address both claims of ineffective assistance of counsel on their merits.
In order to prove a claim that counsel provided ineffective assistance, a petitioner must demonstrate: (1) that his attorney's performance fell below an objective standard of reasonableness; and (2) the deficient performance resulted in actual prejudice. Roe v. Flores-Ortega, 528 U.S. 470, 120 S.Ct. 1029, 1034 (2000) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). In order to determine whether counsel performed below the level expected from a reasonably competent attorney, it is necessary to "judge . . . counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." Lockhart v. Fretwell, 506 U.S. 364, 371 (1993) (citing Strickland, 466 U.S. at 690). Additionally, attorneys must have a wide degree of latitude to make strategic decisions on the basis of their knowledge of the law. Strickland, 466 U.S. at 689.
i) Failure to Raise Defense of Intoxication
Petitioner first claims that his counsel was in effective for failing to raise the defense of intoxication. According to Petitioner, on the day of the incident, he and a friend, Caroline Smith, had been drinking alcohol that, unbeknownst to him, was laced with PCP. Petitioner claims he told his attorney about the alcohol and about Caroline Smith, but his trial counsel failed to interview Smith, call her as a defense witness, or raise the defense of involuntary intoxication at trial. Instead, at trial, Petitioner's defense theory was mistaken identity; his attorney claimed that neither the police nor Rendels actually saw him shoot the officers and that, in fact, it was Marvin Stewart (Rendels' boy friend) who shot the officers.
Under Illinois law, involuntary intoxication is a defense to a crime if such condition "deprives [the accused] of substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law." See People v. Smith, 231 Ill. App.3d 584, 592, 596 N.E.2d 669, 675 (1st Dist. 1992). Voluntary intoxication is a defense to a specific intent offense (such as attempted murder) if the condition of intoxication negates or makes impossible the existence of the mental state which is an element of the crime. Patrasso v. Nelson, 121 F.3d 297, 302 (7th Cir. 1997); see also United States v. Gramley, 16 F. Supp.2d 924, 933 (N.D. Ill. 1998) (in order to establish voluntary intoxication in Illinois, "the intoxication must be so severe as to suspend all reason. . . . [m]ere intoxication is insufficient to create the defense").
Although Petitioner suggests that the defense available to him would have been involuntary intoxication, he gives no explanation of how much or the type of alcohol he consumed, nor does he say how long it took him to consume it. It is, therefore, not entirely clear from the facts he presents whether the defense available would have been voluntary or involuntary intoxication, despite the fact that he alleges his alcohol was laced with PCP. See, e.g., People v. Larry, 144 Ill. App.3d 669, 675-76, 494 N.E.2d 1212, 1217-1218 (2d Dist. 1986) (where defendant "knowingly partook or participated in the smoking of a marijuana cigarette" and "was aware that his friend . . . poured a white powder on it" even though he did not know that the powder was phencyclidine, defendant was not entitled to the defense of involuntary intoxication). Either way, however, in the case of attempted murder, a specific intent crime, Petitioner would have to show that his intoxication was so severe that it made it impossible for him to form the intent to commit murder. See, e.g. Talarico v. Dunlap, 281 Ill. App.3d 662, 667, 667 N.E.2d 570, 573 (1st Dist. 1996) (where specific intent crime is involved, it does not matter if the intoxication was voluntary or involuntary, the only question is whether the intoxication negated the necessary intent). In Illinois, the standard for showing intoxication severe enough to negate intent is very high.
For example, in United States ex rel. Gill v. Gramley, 16 F. Supp.2d 924, 927, 933 (N.D. Ill. 1998), defendant attended a barbeque party where he fought with the victim all day, ultimately stabbing and killing him. After the defendant was convicted of first degree murder, he brought a habeas petition alleging, inter alia, that his counsel was ineffective for failing to raise the defense of intoxication. Id. at 934. It was undisputed that the defendant had been drinking all day, but the court found that counsel's failure to raise the defense of voluntary intoxication was not unreasonable where defendant was able to recall the facts surrounding his altercation with the victim, was "coherent enough" to barbeque ribs just before the fight, and was coherent enough to "attempt to dispose of the murder weapon and flee the scene of the crime." Id. Thus, defendant could not succeed on his ineffective assistance of counsel claim.
Here, similarly, Petitioner claims he was entitled to the defense of intoxication, but he offers nothing that would suggest his intoxication was so great as to cause him to suspend all reason such that he could not form the requisite intent to murder. Just as the defendant in Gramley was coherent enought perform an activity (cooking rib's) immediately before the fight, Petitioner was able to engage in conversation with Rendels just before he shot the officers. Like the defendant in Gramley, Burrell was coherent enough both to flee the scene of the crime and to hide his gun. In light of these facts, it was not unreasonable for Petitioner's counsel to fail to raise the defense of intoxication at trial. Further, unlike counsel in Gramley who did not raise a theory of defense inconsistent with intoxication, Petitioner's counsel chose to raise the defense of mistaken identity, a theory that would not have been available had he raised the defense of intoxication. Petitioner's claim, therefore, does not meet the first part of the Strickland test.
ii) Failure to Interview Witnesses
Petitioner also claims that his trial counsel was ineffective for failing to inter view any of the state's witnesses before trial, including Pamela Rendels and Tina Howard. This claim also does not meet the first part of the Strickland test. As the Seventh Circuit has noted, "[c]ases where an attorney has been held to be ineffective for failing to interview witnesses . . . all involve potential witnesses who were not called at all and whose probable testimony appeared to be wholly favorable to the defendant." See Rutledge v. United States, 230 F.3d 1041, 1050 (7th Cir. 2000); see also Wright v. Gramley, 125 F.3d 1038, 1040 (7th Cir. 1997) (if witnesses would have provided only "weak alibis or tangential information" it is not ineffective assistance of counsel to decide not to interview those witnesses or call them to testify at trial). They do not involve cases where the defense attorney did not interview the state's witnesses.
For example, in Rutledge v. United States, 230 F.3d 1041, 1044-1045 (7th Cir. 2000), defendant, who was convicted of several counts related to running a narcotics enterprise, claimed that his trial counsel was ineffective for failing to interview several of the prosecution's witnesses before trial. Id. at 1046. In particular, he argued that his counsel was ineffective for failing to interview Kim Mummert and Michael Wright, both of whom provided key information for the prosecution's case. Id. at 1050. According to defendant, the two witnesses could have established an alibi for him for some of the charged counts. Id. at 1049. The court disagreed, finding that it made good strategic sense for counsel to impeach Mummert's credibility rather than for counsel to interview her and derive facts helpful to the defense. Id. at 1050. The court also found that it made sense for counsel to decide not to interview Wright. Id. As the court explained: "To put the point simply, Wright was unlikely to provide Rutledge with an alibi for the distribution charge given that Wright's statements were the primary evidence against Rutledge on this charge." Id. at 1051.
Similarly, Petitioner's counsel was not ineffective for failing to interview two prosecution witnesses. As with the witnesses in Rutledge, Rendels and Howard provided key testimony for the state at trial and there was no indication that they had any evidence helpful to the defense. Indeed, it is unclear what Petitioner thinks defense counsel may have accomplished by interviewing either Rendels or Howard at trial. Both witnesses have provided an affidavit saying that she lied at trial and that her testimony was given under the threat of losing her children. Petitioner has not explained, however, why either Howard or Rendels would have testified differently if his attorney had interviewed them at the time. In fact, Rendels, the key eyewitness, has refused to this day to recant her testimony in open court, even though she was provided an opportunity to do so at Petitioner's post-conviction hearing. Nor is there any evidence that Howard would have changed her testimony at trial.
Petitioner's case is readily distinguished from those cases where the Seventh Circuit has held that counsel was ineffective for failing to interview a witness. For example, in Washington v. Smith, 219 F.3d 620, 629 (7th Cir. 2000), the court found that counsel performed below reasonable standards when he tried but failed to contact a key alibi witness for defendant. As the court explained, there was no strategic reason for failing to contact the one person who, if believed, could have changed the course of the trial. Id; see also Harris v. Reed, 894 F.2d 871, 878-79 (7th Cir. 1990) (defense counsel's failure to call eyewitnesses who would have testified that he saw another man, not the defendant, run from scene of shooting constituted ineffective assistance of counsel).
In addition, Petitioner's claim does not meet the second part of the Strickland test because he cannot show that he suffered actual prejudice from the failure to interview these witnesses. As has already been explained, this court must defer to the trial court's findings of fact. Because the jury found Rendels and Howard to be credible witnesses at trial, and because the trial court later found at a post-conviction hearing that Rendels and Howard had not perjured themselves at trial, Petitioner cannot show any actual prejudice from failing to inter view these two witnesses before trial. Petitioner's ineffective assistance of counsel claim must, therefore, fail.
G. Dismissal of Petitioner's Post-Conviction Petition
Petitioner next contends that the trial court abused its discretion in dismissing his petition for post-conviction relief. As has already been explained, this petition raised the claim that Petitioner's trial counsel was ineffective and that two key state witnesses had perjured themselves on the stand. After the petition was filed, the trial court granted Petitioner an evidentiary hearing to present evidence that both Rendels and Howard perjured themselves at trial. Rendels did not come to this hearing but Howard did testify. The court found her testimony at this hearing incredible, and dismissed Petitioner's post-conviction petition. See Exhibit H, at F-20-F23.
Because the court did hold a hearing on this issue, and because the trial judge has the right to determine who is and is not a credible witness at a hearing before him, the trial court did not abuse its discretion in determining that there was no merit to Petitioner's perjury claim and, therefore, dismissing the petition. Although the court did not specifically address Petitioner's ineffective assistance of counsel claims, this court has concluded that such claims are meritless. The trial court did not abuse its discretion in dismissing Petitioner's post-conviction petition. See supra Section F.
H. Effective Assistance of Counsel on Collateral Relief
Petitioner next claims that he was denied effective assistance of counsel on post-conviction appeal. After the trial court determined that Rendels and Howard did not perjure themselves at trial, the state appellate defender was appointed to represent Petitioner in his post-conviction appeal. After reviewing the record and finding no issues on which he could appeal, the state appellate defender sought leave to withdraw, pursuant to Pennsylvania v. Finley, 481 U.S. 551 (1997). Petitioner now claims that he was denied effective assistance of counsel when the court allowed counsel to withdraw. Petitioner also claims that his attorney at his post-conviction hearing failed to adequately represent him because counsel did not locate two of the three witnesses who provided affidavits in support of the Petitioner's post-conviction petition.
The Supreme Court has unequivocally held that "there is no constitutional right to an attorney in state post-conviction proceedings." Coleman v. Thompson, 501 U.S. 722, 752 (1991), (citing Pennsylvania v. Finley, 481 U.S. 1 (1987)). Consequently, a petitioner cannot claim constitutionally ineffective assistance of counsel in such proceedings. Id. (citing Wainwright v. Torna, 455 U.S. 586, 587-88 (1982)) (where there is no constitutional right to counsel there can be no deprivation of effective assistance). The Antiterrorism and Effective Death Penalty Act is equally clear that "the ineffectiveness or in competence of counsel during Federal or State collateral post-conviction proceeding shall not be a ground for relief in a proceeding arising under § 2254." 28 U.S.C. § 2254(i). Because Petitioner did not have a right to effective assistance of counsel on collateral relief, neither claim states grounds for habeas relief.
I. Apprendi Claim
Finally, Petitioner claims that pursuant to Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000), his right to a fair trial was violated when factors that were not presented to the jury were used to enhance his sentence. In Apprendi, the Supreme Court held that any fact that increases the penalty for a crime beyond the statutory maximum, other than the fact of a prior conviction, must be submitted to the jury and proven beyond a reasonable doubt. Id. at 2354-2366.
Petitioner claims that in his case, the trial judge enhanced his sentence after finding that the crime committed was of a cruel and heinous nature. For this reason, Petitioner claims that the jury should have first decided beyond a reasonable doubt that the crime committed was in fact of a cruel and heinous nature before the judge could use this factor to enhance the sentence.
Petitioner has not raised this claim in the state courts and, according to the Seventh Circuit, Apprendi will not apply on collateral relief unless and until the Supreme Court decides otherwise. See Talbott v. Indiana, 226 F.3d 866, 869 (7th Cir. 2000). In any event, Apprendi does not apply to the situation at hand. In Illinois, the sentence for attempt to commit first degree murder is enhanced when certain aggravating factors are present. 720 ILCS 5/8-4(c)(1) (the sentence for attempt to commit first degree murder is the sentence for a Class X felony unless certain aggravating factors are present). One such aggravating factor occurs when the attempted murder is of an individual who was a "peace officer . . . performing his official duties . . . and the defendant knew or should have known that the murdered individual was a peace officer. . . ." 720 ILCS 5/9-1(b)(1). In such cases, the sentence "shall be a term of imprisonment of not less than 20 years and not more than 80 years." 720 ILCS 5/8-4(c)(1)(A). Other aggravating factors include: (1) carrying a firearm during the attempt, which carries an additional 15 years enhancement of the sentence; (2) discharging the firearm, which enhances the sentence by 20 years; and (3) causing severe bodily harm by discharging the firearm, which enhances the sentence by 25 years or up to a term of natural life. Id. § 8-4(c)(1)(B) (C) (D).
This court is uncertain whether, under Apprendi, the heinous and cruel nature of the crime is a "fact" that must be proved independent of proof of the crime itself. Even assuming that it is, the court concludes this claim has no merit. In Petitioner's case, the jury found beyond a reasonable doubt that Petitioner shot at two uniformed police officers. Thus, a number of aggravating factors were present enough to enhance the sentence to the 50 year and 30 year sentences that Petitioner received without having to also submit to the jury whether these crimes were of a cruel and heinous nature. For this reason, Apprendi is inapplicable to the case at hand.
CONCLUSION
For the foregoing reasons, Burrell's petition for writ of habeas corpus is denied.