Opinion
No. 97 C 5585
February 12, 1999
MEMORANDUM OPINION AND ORDER
Petitioner, Delilah Gonzalez, has filed a petition for federal habeas corpus relief. She is currently an Illinois state prisoner incarcerated at Dwight Correctional Center in Dwight, Illinois. In September 1991, petitioner was convicted of first-degree murder and received a 40-year prison sentence. She appealed her conviction to the Illinois Appellate Court, raising the following issues: 1) she received an excessive sentence and 2) the prosecutor's closing remarks denied her a fair trial. The appellate court affirmed the conviction in May 1993. Petitioner apparently did not seek review before the Illinois Supreme Court. In September 1995, she filed a pro se petition for post-conviction relief along with a motion for leave to file the petition belatedly in the Circuit Court of Cook County. Petitioner raised the following issues: 1) ineffective assistance of counsel for (a) failure to cross examine two detectives as to their perjury on the stand; (b) failure to submit into evidence petitioner's low intellectual capacity; (c) failure to subpoena all available witnesses; and (d) failure to consult with petitioner concerning her defense; 2) denial of her 14th Amendment right to an impartial sentencing judge; 3) admission of her coerced confession; 4) admission of her confession despite her low intellectual capacity and educational level; and 5) admission of line-up identification despite the line-up's suggestiveness. The Circuit Court of Cook County denied the petition, stating that it was untimely, it alleged conclusions instead of facts, the factual issues that were raised could have been raised on direct appeal, and the claims were without merit. Petitioner appealed the denial to the Illinois Appellate Court. Her court-appointed counsel filed a motion to withdraw pursuant to Pennsylvania v. Finley, 481 U.S. 551 (1987), stating that the petition was untimely and did not raise the gist of a constitutional claim. The appellate court granted counsel's motion and affirmed the Circuit Court's dismissal of the petition. Petitioner then filed for leave to appeal to the Illinois Supreme Court, raising the following issues: 1) her equal protection rights were violated by the Illinois Post-Conviction Hearing Act only permitting appointment of counsel if it is found that a petition contains issues of merit; and 2) her constitutional rights were violated by the Circuit Court's failure to notify petitioners that their post-conviction petitions are untimely so that they may address the issue of culpable negligence. The Illinois Supreme Court denied leave to appeal.
Petitioner proceeded to file the instant habeas corpus petition, raising the following issues: 1) she was denied a fair trial by the prosecutor's closing statement, in which he compared the rights petitioner was afforded to the fairness the victim received; 2) she received ineffective assistance of trial counsel because of counsel's failure to submit evidence of petitioner's low intellectual capacity, failure to subpoena all available witness, failure to cross examine the police detective as to his perjury and failure to consult with petitioner about the case; 3) the trial court erred in admitting petitioner's coerced confession at trial; 4) her sentence violated the Illinois Constitution; 5) the Illinois Post-Conviction Hearing Act provision that permits appointment of counsel only if the court finds that a petition contains issues of merit places an undue burden on low education minorities and poor people and violates their equal protection rights; and 6) petitioner's equal protection rights were violated by the Circuit Court's failure to notify petitioners that their post-conviction petitions were untimely.
The court must evaluate this habeas petition according to 28 U.S.C. § 2254. Only claims that the petitioner is being held in state custody in violation of federal constitutional or statutory violations are appropriately raised in habeas petitions. 28 U.S.C. § 2254(a). The court may not grant relief for claims that a state court has adjudicated on their merits unless that adjudication:
1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the U.S. Supreme Court; 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). A state appellate court's factual summary is presumed correct unless the petitioner rebuts it with clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
Respondent, Warden Gwendolyn Thornton, denies that petitioner is entitled to habeas corpus relief. First, she claims that petitioner procedurally defaulted several of her claims by failing to properly raise them before the Illinois courts. The doctrine of procedural default requires constitutional claims a petitioner raises in her habeas petition to have been fairly presented during the state court proceedings to provide the state courts with the opportunity to address their merits. Momient-El v. DeTella, 118 F.3d 535, 538 (7th Cir.), cert. denied 118 S.Ct. 448 (1997). A federal court is barred from considering constitutional issues if a petitioner did not raise them during the state proceedings in compliance with state procedural rules. Id. This bar is avoided only if a petitioner demonstrates: 1) cause for the failure to present the claim and prejudice if the claim is not heard; or 2) that a fundamental miscarriage of justice would be precluded an innocent person. Cawley v. DeTella, 71 F.3d 691, 695 (7th Cir. 1995).
In addition to petitioner's failure to raise her claims before the state courts, respondent argues that the state court denied all claims that were raised in petitioner's post-conviction petition based on independent and adequate state law grounds. When a petitioner does raise constitutional issues in state proceedings but the state court declines to address the merits of the issues because petitioner failed to follow state procedural rules, a federal court is barred from reviewing the claims. This is because the state court's decision rests on independent and adequate state law grounds. Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 2565 (1991). A state court's determination that a state law was violated cannot have resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the U.S. Supreme Court. 28 U.S.C. § 2254(d).
Respondent argues that petitioner's claims of ineffective assistance of trial counsel and of admission of her coerced confession are procedurally defaulted under independent and adequate state law grounds because although these claims were initially raised in petitioner's post-conviction petition, the Circuit Court of Cook County summarily dismissed the petition as untimely under Illinois' procedural rules. Illinois law requires the filing of a post-conviction petition within three years of the date of sentencing or six months after the denial of a petition for leave to appeal, whichever is sooner. 725 ILCS 5/122-1(c). This untimeliness was also one basis for defense counsel's subsequent motion to withdraw, which the Illinois Appellate Court granted. The state court's denial of consideration of the merits because of the petition's untimeliness constitutes a decision based on independent and adequate state law grounds and is therefore inappropriate for federal habeas review.
Next, respondent alleges that petitioner's claims that the Illinois Post-Conviction Hearing Act violates her equal protection rights and the Circuit Court's failure to notify petitioners of the untimeliness of their post-conviction petitions violates her equal protection and due process rights were not included among petitioner's state court appeals or petitions until she filed for leave to appeal the denial of her post-conviction petition to the Illinois Supreme Court. Raising an issue for the first time on discretionary review does not comply with Illinois' procedural rules. The Illinois Supreme Curt declined review and denied the petition. No Illinois court has ever addressed the merits of these two claims. These issues have therefore been procedurally defaulted and this court is barred from addressing their merits.
Petitioner's next claim is that the 40-year sentence she received violated Article I Section II of the Illinois Constitution. However, the court may only address issues of federal constitutional law in a habeas petition. 28 U.S.C. § 2254(a). A claim that a state constitution has been violated is therefore inappropriate for federal habeas corpus review and the court is barred from addressing its merits.
Last, respondent claims that petitioner may have procedurally defaulted on her claim that her 14th Amendment rights were violated by the prosecutor's closing statements because she did not petition for leave to appeal before the Illinois Supreme Court after the Illinois Appellate Court denied this claim on direct appeal. The Seventh Circuit, however, has held that failure to petition to the Illinois Supreme Court does not result in procedural default because such review serves a limited purpose and is discretionary. Boerckel v. O'Sullivan, 135 F.3d 1194, 1200 (7th Cir. 1998). Therefore, the court will consider this claim on the merits.
Respondent asserts that even if the court considers the merits of the claim, the Illinois Appellate Court's decision was not an unreasonable application of U.S. Supreme Court law. Petitioner has cited no case law in her brief but states that the prosecutor's closing statements appealed to the jury's primitive instincts of vengeance and penalized petitioner's exercise of her constitutional rights. The Illinois Appellate Court held that the prosecutor's statements comparing the constitutional protections afforded the [petitioner] and the violated rights of the victim, were indeed error. People v. Gonzalez, 617 N.E.2d 325, 328, 247 Ill. App.3d 370, 375 (1st Dist. 1993). However, relying on Illinois law, the appellate court stated that it must consider whether the evidence of the petitioner's guilt was substantial and whether the prosecutor's statements compromised the fairness of the trial (citing People v. Smith, 604 N.E.2d 858, 152 Ill.2d 229 (1992)). Thus, the arguments must be assessed within the context of the trial in its entirety (citing People v. Tate, 259 N.E.2d 791, 45 Ill.2d 540 (1971)).
The U.S. Supreme Court has held that a petitioner or defendant must establish that the prosecutorial misconduct so infected the trial with unfairness as to make the resulting conviction a denial of due process. Darden v. Wainwright, 477 U.S. 168, 181 (1986). The Supreme Court's reasoning in Darden is similar to that applied by the Illinois Appellate Court in the instant case: both courts reviewed the prosecutor's remarks in light of the entire record to determine if the petitioner was deprived of a fair trial. The Illinois Appellate Court stated that the evidence presented against petitioner was not closely balanced and was clearly sufficient to support a guilty verdict in the absence of the prosecutor's improper argument. Gonzalez, 617 N.E.2d at 328, 247 Ill.App.2d at 375. The evidence against the petitioner that the appellate court considered included her belief that a member of the Gaylords had killed her brother the previous year; her identifying the victim as a member of the Gaylord gang to her companion, Julio Morejon; her fondling of the knife before handing it to Morejon, who then stabbed the victim; and her admission that she knew Morejon was going to stab the victim and that she held the door of the bus open for him to aid in his escape. After reviewing the prosecutor's statement in the context of this evidence, the appellate court concluded that the improper statements were not significantly prejudicial to constitute a material factor in the jury's verdict and were therefore harmless error. Id. The court finds that the Illinois Appellate Court's analysis cannot be considered an unreasonable application of United States Supreme Court law as articulated in Darden. It therefore concludes that petitioner cannot establish that the prosecutor's comments deprived her of a fair trial in violation of her due process rights.
ORDERED: For the foregoing reasons, the court denies the petition for habeas corpus relief.