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U.S. ex Rel., Galvan v. McVicar

United States District Court, N.D. Illinois, Eastern Division
Dec 1, 2000
No. 99 C 1614 (N.D. Ill. Dec. 1, 2000)

Opinion

No. 99 C 1614

December 1, 2000


MEMORANDUM OPINION AND ORDER


Following a jury trial in the circuit court of Cook County, Petitioner Jose Galvan ("Petitioner") was convicted of one count of possession of a controlled substance with intent to deliver and a separate count of possession of a controlled substance. The trial court sentenced Petitioner to 25 years imprisonment for the first count and an additional one year concurrent sentence for the second count. The Illinois Appellate Court affirmed the conviction and sentences and Petitioner's subsequent post-conviction appeal was unsuccessful. Now incarcerated at the Vienna Correctional Center, Petitioner brings this petition for federal habeas corpus pursuant to 28 U.S.C. § 2254, raising several claims. Because, as discussed below, each of Galvan's five claims are procedurally defaulted, his petition for writ of habeas corpus 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. Matiz, 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 US. ex rel. Green v. Greer, 667 F.2d 585, 589 n. 6 (7th Cir. 1981). Galvan does not challenge the Illinois Appellate Court's factual findings in his petition. The court, therefore, adopts the facts set forth in People v. Galvan, No. 1-91-0749, Ill. App. Ct., 1st Dist., March 18, 1993, at 1-4.

The facts presented at trial established that on August 17, 1989, Chicago police officer Thomas Ptacek and Detective Clifford Bertie were conducting surveillance of an apartment when they saw Petitioner Galvin exit the apartment carrying a package and enter a car with Guadalupe Villareal and her child. ( People v. Galvan, No. 1-91-0749, Ill. App. Ct., 1st Dist., Mar. 18, 1993, at 1-2.) After stopping Galvan for an outstanding traffic violation, Officer Ptacek reached into the car and placed the gear shift into park position, at which time he observed a brick-shaped package. ( Id.) The package was later found to contain 998.4 grams of 92% pure cocaine. ( Id. at 3.) Officer Ptacek then searched Petitioner and found in his front pocket a rolled-up dollar bill containing white powder later found to be 1.038 grams of 92% pure cocaine. ( Id.)

According to Petitioner, Villareal is his common-law wife and the child in the car was their child. (Exhibit B, Answer to Petition for Writ of Habeas Corpus, Petition for Post-Conviction Relief).

At trial, Petitioner was convicted of one count of possession with intent to distribute the 998.4 grams of cocaine and one count of possession for the 1.038 grams of cocaine. ( Id. at 1.) On January 23, 1991, he was sentenced to 25 years imprisonment for the first count and an additional one year sentence to be served concurrently with the first for the second count. (Exhibit D, Answer to Petition for Writ of Habeas Corpus (hereinafter "Answer to Petition"), People v. Galvan, No. 1-96-0945, Ill. App. Ct., 1st Dist., Sept. 3, 1997, at 1.)

PROCEDURAL HISTORY

Petitioner appealed his conviction to the Appellate Court of Illinois, First Judicial District, arguing: (1) that he was not proven guilty beyond a reasonable doubt because Officer Ptacek was not a credible witness; and (2) he did not knowingly waive his Miranda rights. ( People v. Galvan, No. 1-91-0749, Ill. App. Ct., 1st Dist., Mar. 18, 1993, at 4-5.) On March 18, 1993, the Appellate Court affirmed Petitioner's conviction and sentence. ( Id. at 1.) Petitioner did not file a petition for leave to appeal to the Illinois Supreme Court at that time. (Answer to Petition ¶ 7.)

On December 12, 1995, Petitioner filed a pro se petition for post-conviction relief claiming that: (1) he was denied effective assistance of counsel at trial and on appeal when his counsel failed to prevent certain statements Petitioner made under duress from being introduced at trial; (2) he was denied the effective assistance of counsel when his counsel did not object to the introduction of evidence of other crimes; (3) his motion for a mistrial should have been granted by the trial court; (4) his motion to suppress the cocaine should have been granted because the cocaine was not in the plain view of the officers; (5) the chemist did not test a sufficient amount of the substance to prove possession of the charged amount; and (6) the state failed to prove him guilty beyond a reasonable doubt. (Exhibit B, Answer to Petition, Petition/or Post-Conviction Relief, at 2-8.)

The trial court dismissed the petition on January 29, 1996 as "frivolous and patently without merit" without any further discussion. (Exhibit C, Answer to Petition, People v. Galvan, No. 89 CR-19710 (filed Feb. 29, 1996).) Petitioner appealed the denial of his post-conviction petition to the Appellate Court of Illinois. On September 3, 1997, the Appellate Court affirmed the trial court, finding that "Defendant's petition, filed six years after his conviction and 33 months after the affirmance of his convictions and sentences on direct appeal, was clearly untimely." (Exhibit D, Answer to Petition, People v. Galvan, No. 1-96-0945, Sept. 3, 1997.)

Petitioner than filed a petition for leave to appeal to the Illinois Supreme Court. ( People v. Galvan, 182 Ill.2d 558, 707 N.E.2d 1242 (1999).) In this appeal, Petitioner raised the following four arguments: (1) that he received ineffective assistance of counsel; (2) that certain statements he made to the police were made under duress and coercion; (3) that the prosecutor should not have been allowed to introduce evidence of other crimes at trial and (4) that he was denied due process of law under the Illinois Post-Conviction Hearing Act. (Exhibit F, Answer to Petition, Petition for Leave to Appeal to the Illinois Supreme Court, People v. Galvan, No. 86692, at 2-8.) On February 3, 1999, the Illinois Supreme Court denied the petition without comment. ( People v. Galvan, (Table) 182 Ill.2d 558, 707 N.E.2d 1242 (1999).)

At times Petitioner refers to this claim as "Prosecutor's Misconduct." ( Id. at 2.)

June 2, 1999, Petitioner filed his Amended Petition for Writ of Habeas Corpus Relief, raising the following claims: (1) that he was denied his constitutional right not to incriminate himself when statements he made under duress were admitted at trial; (2) that he was denied due process when the prosecution was allowed to introduce evidence of other crimes at trial; (3) that he was sentenced twice for the same act in violation of the Fourteenth Amendment; (4) that he was denied the effective assistance of both trial and appellate counsel; and (5) that in violation of his right to due process, he was denied access to the courts during the entire time he has been incarcerated. (Amended Petition for Writ of Habeas Corpus, at 6-8.) For the reasons set forth below, Galvan's petition for writ of habeas corpus is denied.

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). This court will not 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).

B. Procedural Default

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 declined to address a claim because the petitioner failed 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 v. Thompson, 501 U.S. 722, 731 (1991). 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).

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) 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). Applying this standard for procedural default, the court will address each of Petitioner's arguments in turn.

1. Independent and Adequate State Law Grounds for Default

In his post-conviction petition and again in his habeas petition, Petitioner argued, inter alia, that he was denied the effective assistance of both trial and appellate counsel. Included in that claim, Petitioner argued that his constitutional right not to incriminate himself was violated when his lawyer allowed certain statements he made under duress to be admitted at trial and, further, that he was denied due process of the law when his counsel did not object to the admissibility of evidence of other crimes.

The court notes, however, that in his habeas petition, Petitioner appears to raise both his challenge to the admission of statements he made under duress and his objection to "other crimes" evidence as claims independent from his ineffective assistance of counsel claim. Notably, these claims were never raised on direct review and were arguably barred from consideration by way of a post-conviction petition, because post-conviction review in Illinois is only available "to resolve allegations that constitutional violations occurred at trial, when those allegations have not been, and could not have been, adjudicated previously." United States v. Coan, No. 96 C 4130, 2000 WL 1262945, at *3 (N.D. Ill. Sept. 1, 2000); People v. Evans, 186 Ill.2d 83, 89, 708 N.E.2d 1152, 1161 (1999) ("issues that could have been presented on direct appeal, but were not, are deemed waived.") In his post-conviction petition, Petitioner did raise these issues as examples supporting his ineffective assistance of counsel claim. Because this court must liberally construe pro se petitions, Cable v. Ivy Tech State College, 200 F.3d 467, 477 (7th Cir. 1999), the court will assume that both of these claims are really part of Petitioner's ineffective assistance of counsel claim in his habeas petition as well. Either way, as will be further explained, Petitioner has procedurally defaulted on these claims.

The trial court dismissed the petition as "frivolous and patently without merit." Exhibit C, Answer to Petition, People v. Galvan, No. 89 CR-19710 (filed Feb. 29, 1996). The Illinois Appellate Court affirmed that decision, explaining that the petition was "clearly untimely" because Petitioner filed his post-conviction petition on December 12, 1995, six years after his conviction and 33 months after his convictions and sentences were affirmed by the Illinois Appellate Court. Exhibit D, Answer to Petition, People v. Galvan, No. 1-96-0945, Sept. 3, 1997. The Illinois Supreme Court denied the petition for leave to appeal. People v. Galvan, 182 Ill.2d 558, 707 N.E.2d 1242 (1999).

As articulated above, a habeas petitioner who has failed to meet state procedural requirements for presenting his federal claim has deprived the state courts of an opportunity to address those claims in the first instance, and, therefore, the federal court is barred from hearing any such claims on the merits. See Coleman v. Thompson, 501 U.S. 722, 732 (1991). In 1994, the statute of limitations for Illinois post-conviction petitions periods was changed to three years after the date of conviction or 6 months after the denial of the petition for leave to appeal to the Illinois Supreme Court, whichever is sooner. See 725 ILCS § 5/122-1 (c); see also United States ex rel. Collins v. Neal, No. 99 C 8028, 2000 WL 1262912, at *1-2 (N.D. Ill. Sept. 1, 2000). For convicted persons whose time for filing post conviction petitions was effectively eliminated by this law, the statute provided a six and a half month grace period. See id. *2. Petitioner did not take advantage of this grace period, however, and brought his post-conviction petition three years later than required by Illinois law. His claim was clearly denied on the basis of an adequate state procedural rule and, therefore, he has procedurally defaulted on his claim.

Thus, this court cannot review Petitioner's claim on its merits unless he can demonstrate: (1) cause for the default and actual prejudice as a result of the alleged violation of federal law; or (2) that failure to consider the claims will result in a fundamental miscarriage of justice. Id. at 750. The "cause" excusing the procedural default must result from some objective factor external to the defense that prevented the prisoner from raising the claim and which cannot be fairly attributable to his own conduct. Murray v. Carrier, 477 U.S. 478, 488 (1986).

In an effort to show cause for not bringing a timely post-conviction petition, Petitioner explains that he is of Hispanic decent, speaks very little English, and has not been afforded a translator or interpreter to help him on his post-conviction appeal. He also contends that he has not found a state employed law clerk or paralegal or even a jail house lawyer who is fluent in Spanish. These facts, though unfortunate, do not meet the standard of cause established by the Supreme Court.

It is undisputed that Petitioner did not have a constitutional right to counsel in post-conviction proceedings. See Neal v. Gramley, 99 F.3d 841, 843 (7th Cir. 1996). In United States v. Coleman, the Supreme Court explained that "where the State has no responsibility to ensure that petitioner was represented by competent counsel . . . it is the petitioner who must bear the burden of a failure to follow state procedural rules." 501 U.S. at 754. Following Coleman, the Seventh Circuit has held that there can be no less stringent definition of cause for pro se litigants, because where "there is no constitutional right to an attorney in any state post-conviction proceedings," a petitioner's "failure to act or think like a lawyer cannot be cause for failing to assert a claim." Barksdale v. Lane, 957 F.2d 379, 382 (7th Cir. 1992) (quoting Henderson v. Cohn, 919 F.2d 1270, 1272 (7th Cir. 1990). Under this standard, courts have found that a petitioner's pro se status is not sufficient to constitute cause, even when the petitioner was illiterate or had little education. See, e.g., Henderson v. Cohn, 919 F.2d 1270, 1271 (7th Cir. 1990) (petitioner's illiteracy does not excuse his failure to file a timely post-conviction petition); Baugh v. Lane, 722 F. Supp. 525, 531 (C.D. Ill. 1989) (petitioner's lack of legal knowledge was insufficient to establish cause for delay in filing for state post-conviction relief); United States ex rel. Stewart v. Ragen, 231 F.2d 312, 314 (7th Cir. 1956) (limited education, failure to understand legal procedures, and prison rule prohibiting inmates from helping each other prepare legal proceedings do not excuse failure to exhaust state remedies); McCoy v. Newsome, 953 F.2d 1252, 1258 (11th Cir. 1992) (lack of education is not an "external impediment" to a petitioner's defense that would constitute cause); Hughes v. Idaho State Board of Corrections, 800 F.2d 905, 909 (9th Cir. 1986) (the fact that Petitioner was illiterate and that the inmate who helped him bring his post-conviction petitioner was released before the petition needed to be appealed did not constitute cause).

In Henderson v. Cohn, 919 F.2d 1270, 1271 (7th Cir. 1990), the Seventh Circuit affirmed the district court's refusal to grant habeas relief where the petitioner failed to file a timely post-conviction petition in state court, despite petitioner's claim that his illiteracy constituted cause for not timely filing the appeal. Noting that a number of other circuits have held that illiteracy does not constitute cause for a procedural default, the court explained that "[a] person may be illiterate yet still have the good sense and mental competence to be concerned and inquire about his convictions." Id. at 1272. Because Petitioner's inability to "think like a lawyer" could not constitute cause where he had no constitutional right to assistance of counsel, the court determined that "illiteracy is not the type of external impediment to which the Supreme Court alluded . . . when it suggested that cause could be shown by 'some objective factor external to the defense' which impeded . . . efforts to comply with the State's procedural rules." Id. at 1273, citing Murray v. Carrier, 477 U.S. 478, 488 (1986).

Similarly, Petitioner's claim that he was not able to complete a timely post-conviction petition because he did not speak English well and did not have the assistance of law clerks or jailhouse lawyers that spoke Spanish does not constitute cause where he was not entitled to such assistance on collateral appeal. See, e.g. Vasquez v. Lockhart, 867 F.2d 1056, 1058 (8th Cir. 1988) (petitioner, a Mexican citizen, could not show cause merely by his pro se status and lack of familiarity with the American language and court system). Petitioner has not alleged an external impediment which has been recognized by any court as sufficient to constitute cause. In addition, the fact that Petitioner was able to file a post-conviction appeal, albeit outside the allowable time limits, itself demonstrates that the issues involved were intrinsically beyond a pro se petitioner's ability to present. See McCoy v. Newsome, 953 F.2d 1252, 1258 (11th Cir. 1992) (where petitioner filed his claims late, those claims were not intrinsically beyond a pro se petitioner's ability to bring before the court).

Because this court finds that Petitioner has not shown cause for failing to bring a timely petition, it is not necessary to address the second prong of prejudice to determine that he has procedurally defaulted on these claims, barring this court from reaching the merits of the claims. In addition, because Petitioner raises no claim of actual innocence, refusing to consider these defaulted claims will not result in a "fundamental miscarriage of justice." Coleman, 501 U.S. at 750.

2. Claims Not Raised In State Court

Petitioner's next claim — that he was sentenced twice for the same act in violation of the fourteenth amendment — has been brought for the first time in the instant habeas petition. Under § 2254, the court will not grant a writ of habeas corpus unless "the applicant has exhausted the remedies available in the courts of the State." 28 U.S.C. § 2254 (b)(1); see also O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999) (a habeas petitioner must give the state courts an opportunity to act on his claims before he presents those claims to a federal court in a habeas petition). A petitioner's failure to use available state proceedings will result in a procedural default preventing review of petitioner's claims by the federal courts. Pisciotti v. Washington, 143 F.3d 296, 300 (7th Cir. 1998). The claim cannot then be entertained by the federal court unless a petitioner can establish both cause for the procedural error and prejudice resulting from that error. Id.

Because Petitioner failed to raise this claim at any time in state court proceedings and it is now to late to do so, he has procedurally defaulted on this claim. In addition, Petitioner has failed to allege any cause for failing to raise this claim before this time. He does not allege ineffective assistance of counsel at the appellate level for failing to raise this claim, nor did he try to raise it himself in his post-conviction petition. Therefore, the court is barred from hearing this claim on the merits.

In any event, this claim has no merit. Petitioner was not sentenced twice for the same act. Instead, he was sentenced to twenty five years imprisonment for one count of possession with intent to distribute the brick package of cocaine found in his car, which contained 998.4 grams of 92% cocaine. He was then sentenced to an additional, concurrent year, for a separate count of possession of a small amount (1.038 grams) of 92% pure cocaine found on his person.

C. Denied Access to the Courts

Lastly, Petitioner claims that he was denied access to the courts during the entire time he has been incarcerated in violation of his right to due process. Specifically, Petitioner argues that because law clerks in the various facilities where he has been confined did not speak Spanish, he could not "effectively communicate his legal needs and his arguments for relief." Amended Petition for Writ of Habeas Corpus, at 8. He also contends that the facilities did not have "adequate training" in order to help him bring his legal petitions in a timely manner, nor did they afford him an interpreter to help him utilize the law libraries. Id.; Petitioner's Traverse to Respondent's Answer to Habeas Corpus Petition (hereinafter "Petitioner's Traverse"), at 4. Finally, he contends that because he had to search for a translator as well as someone to help him prepare his petition, the time it took him to put together his petition was a "denial of access to the courts in and of itself," Petitioner's Traverse at 4.

Petitioner's allegations are properly considered as a challenge to the conditions of his confinement, not to the constitutionality of the procedures by which he was convicted. In any event, Petitioner does not claim that he was prevented from filing any necessary legal documents, nor could he. In fact, during the time he was incarcerated he has filed a direct appeal, a post-conviction petition, an appeal from the denial of his post-conviction petition, a petition for leave to appeal, a petition for writ of habeas corpus and, finally, this amended petition for writ of habeas corpus. Instead, the crux of Petitioner's claim is that he was not able to develop the arguments in his post-conviction petition in a "meaningful" manner, nor was he able to file the petition in a timely manner, because he was not provided any assistance in doing so. Id. at 5.

While the court does not doubt that Petitioner's inability to find assistance in bringing his collateral appeals influenced his ability to present these appeals in a timely manner, this claim simply does not present a constitutional violation because "there is no federal constitutional right to counsel in post-conviction proceedings." Neal v. Gramley, 99 F.3d 841, 843 (7th Cir. 1996). Because there is no right to assistance of counsel at this stage, and even incompetence of counsel in collateral proceedings cannot be a ground for granting federal habeas corpus relief, 28 U.S.C. § 2254 (i), the fact that Petitioner was not able to effectively complete a timely petition on his own cannot rise to the level of a constitutional violation and, therefore, does not warrant habeas relief, nor does it raise sufficient grounds to constitute cause for procedurally defaulting on his other claims.

CONCLUSION

For the foregoing reasons, Galvan's petition for writ of habeas corpus is denied.


Summaries of

U.S. ex Rel., Galvan v. McVicar

United States District Court, N.D. Illinois, Eastern Division
Dec 1, 2000
No. 99 C 1614 (N.D. Ill. Dec. 1, 2000)
Case details for

U.S. ex Rel., Galvan v. McVicar

Case Details

Full title:UNITED STATES OF AMERICA ex rel. JOSE GALVAN, Petitioner, v. RICHARD D…

Court:United States District Court, N.D. Illinois, Eastern Division

Date published: Dec 1, 2000

Citations

No. 99 C 1614 (N.D. Ill. Dec. 1, 2000)