Opinion
No. 97 C 7980
February 11, 2000
MEMORANDUM OPINION AND ORDER
State prisoner William Walls has filed a petition for a writ of habeas corpus, alleging six grounds on which his conviction and sentence for aggravated criminal sexual assault are constitutionally infirm. The court finds that Walls is procedurally barred from raising five of the six grounds because he did not raise them on direct appeal in state court. As to the other ground, the court finds no error by the state courts that would warrant a grant of habeas under 28 U.S.C. § 2254. Walls' petition is denied.
Background
Stemming from a 1992 attack on a thirteen year-old girl, petitioner Walls was convicted of aggravated criminal sexual assault after a bench trial, and sentenced to a fifteen-year prison term. Walls appealed his conviction and sentence to the Illinois Appellate Court, raising two claims: first, that the failure of Walls' trial counsel to perfect his alibi defense constituted ineffective assistance of counsel in violation of the Sixth Amendment; and second, that the trial court erred in not conducting a hearing on Walls' pro se motion for a new trial based on the incompetence of his trial counsel, and in not appointing new counsel to represent Walls in the hearing. The Illinois Appellate Court affirmed Walls' conviction and sentence on June 6, 1995 in an eight-page unpublished order. (Exh. A to Resp.'s Answer)
Walls then filed a petition for leave to appeal in the Illinois Supreme Court, raising the same two claims — although styled somewhat differently — as he raised in the Illinois Appellate Court. (Exh. C to Resp.'s Answer) The Supreme Court summarily denied Walls' petition for leave to appeal on October 4, 1995. (Exh. D to Resp.'s Answer)
On June 10, 1996, Walls filed a petition for post-conviction relief with the trial court, raising three claims — ineffective assistance of trial counsel, prosecutorial misconduct, and abuse of discretion by the trial court in one of its evidentiary rulings. (Exh. E to Resp.'s Answer) On August 27, 1996, Walls filed a second petition for post-conviction relief, raising the same claims, but adding a claim for ineffective assistance of appellate counsel. (Exh. F to Resp.'s Answer) The trial court summarily dismissed both petitions as not timely filed. See 725 ILL. COMP. STAT. 5/122-1 (requiring post-conviction petition to be filed within six months after the denial of review by the Illinois Supreme Court or three years after conviction, whichever is sooner).
When Walls appealed these dismissals, his appointed appellate counsel filed a motion to withdraw given that "there are no appealable issues in this case." (Exh. I to Resp.'s Answer) On April 10, 1997, the Illinois Appellate Court granted counsel's motion to withdraw and affirmed the lower court's denials of Walls' post-conviction petitions. (Exh. G to Resp.'s Answer)
On June 20, 1997, Walls filed a petition for leave to appeal with the Illinois Supreme Court, raising two claims — both relating to the appellate court's decision allowing Walls' appellate counsel to withdraw. (Exh. J to Resp.'s Answer) On October 1, 1997, the Illinois Supreme Court denied Walls' petition. (Exh. K to Resp.'s Answer)
The Habeas Petition
Walls' petition for writ of habeas corpus raises six claims:
Claim 1: Walls alleges ineffective assistance of trial counsel based on his counsel's failure to interview, investigate, or subpoena certain witnesses, to enter police dispatch sheets, police reports, and follow-up police reports into evidence, or to preserve these issues for appellate review. Apparently, these shortcomings all relate to an alibi defense presented by Walls' counsel at trial, through which he hoped to convince the judge that Walls could not have committed the assault and arrived at work at the time stamped on his time card from that day. Walls raised this ineffective assistance of trial counsel issue with the Illinois Appellate Court on direct appeal, in his petition for leave to appeal to the Illinois Supreme Court, and in both of his petitions for post-conviction relief.
Claim 2: Walls claims prosecutorial misconduct based on the prosecutor's closing rebuttal at trial in which he allegedly represented what the testimony of an absent witness (one of the investigating detectives) would have been. According to Walls, the representation misstated the evidence and hindered his alibi defense. Walls did not raise this argument until his first petition for post-conviction relief.
Claim 3: Walls alleges ineffective assistance of appellate counsel based on his attorney's failure to notify him that the Illinois Supreme Court denied his petition for review. As a result, Walls' post-conviction petitions were filed untimely. Walls also alleges that his appellate attorney was ineffective for failing to present Walls' claims of ineffective assistance of trial counsel, prosecutorial misconduct, and trial court error. Walls did not raise the ineffective assistance of appellate counsel claim until his second petition for post-conviction relief.
Claim 4: Walls alleges a conflict of interest between his trial counsel and appellate counsel, both of whom were from the public defender's office. According to Walls, the fact that they were both from the same agency prevented his appellate counsel from raising the ineffective assistance of trial counsel argument. Walls raises this claim for the first time in his current habeas petition.
Claim 5: Walls alleges that his right to appeal was improperly denied. Apparently referring to discretionary review by the state courts, Walls asserts that he is entitled to have his new issues and evidence reviewed. Walls raises this claim for the first time in his current habeas petition.
Claim 6: Walls alleges that the trial court abused its discretion by allowing the parties to stipulate to the testimony of an absent witness, and by allowing the prosecutor to refer to that stipulated testimony in his rebuttal argument. Walls did not raise this claim until his first petition for post-conviction relief.
Analysis
Under 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act, the court may not grant Walls' habeas corpus petition unless he has "exhausted the remedies available in the courts of the State." 28 U.S.C. § 2254 (b)(1)(A). "In other words, the state prisoner 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." O'Sullivan v. Boerckel, 119 S.Ct. 1728, 1731 (1999). This rule "reduces friction between the state and federal court systems by avoiding the "unseemliness' of a federal district court's overturning a state court conviction without the state courts having had an opportunity to correct the constitutional violation in the first instance." Id. at 1732 (internal brackets omitted).
The Act applies to all habeas petitions filed after its effective date — April 24, 1996. See Lindh v. Murphy, 521 U.S. 320, 336 (1997).
To meet this "exhaustion" requirement, Walls "must have raised all of his claims during the course of the state proceedings, presenting each claim fully and fairly to the state courts." Rodriguez v. Scillia, 193 F.3d 913, 916 (1999) (citing Verdin v. O'Leary, 972 F.2d 1467, 1472 (7th Cir. 1992)). Fair presentment requires Walls "to give the state courts a meaningful opportunity to pass upon the substance of the claims later presented in federal court." Id. For a constitutional claim to be fairly presented, "both the operative facts and the "controlling legal principles' must be submitted" for the court's review. Id.
Of the six claims Walls presents to this court in his habeas petition, only one was raised on direct appeal in state court. The other five were not raised until his petitions for post-conviction relief, in which he asked the trial court to set aside his conviction and hold an evidentiary hearing. Even assuming that Walls was justified in not raising these claims on direct appeal, the claims are procedurally defaulted because his post-conviction petitions were untimely. "The [independent and adequate state ground] doctrine applies to bar federal habeas when a state court declined to address a prisoner's federal claims because the prisoner had failed to meet a state procedural requirement." Coleman v. Thompson, 501 U.S. 722, 729-30 (1991).
This court may only review Walls' defaulted claims if his petition "shows cause for failure to raise them at the appropriate time and actual prejudice which resulted from such failure." Rodriguez, 193 F.3d at 917 (citing Wainwright v. Sykes, 433 U.S. 72 (1977)). Absent this showing, "a defaulted claim is reviewable only if refusal to consider it would result in a "fundamental miscarriage of justice,' that is, where `a constitutional violation has probably resulted in the conviction of one who is actually innocent.'" Id. (citing Murray v. Carrier, 477 U.S. 478, 495-96 (1986)). This would require Walls "to show that it is more likely than not that no reasonable juror would have convicted him." Id. (citing Schlup v. Delo, 513 U.S. 298, 329 (1995)); see also Buelow v. Dickey, 847 F.2d 420, 427 (7th Cir. 1988) (holding that court "may set aside the cause-and-prejudice test and permit a habeas petition if, due to a fundamentally unjust trial, an innocent defendant was convicted"), cert. denied, 489 U.S. 1032 (1989).
In determining whether Walls can meet the cause-and-prejudice test as to his late post-conviction petition, the court must honor the state court's finding of untimeliness. "When considering a habeas petition, therefore, a federal court must respect a state court's finding of waiver or procedural default under its own laws." Buelow, 847 F.2d at 425. The fact that the untimeliness may have stemmed — at least indirectly — from an oversight by Walls' attorney does not lift the procedural bar. Even assuming that Walls' attorney failed to notify him that the Illinois Supreme Court denied his petition for leave to appeal, such a failure does not excuse the resulting untimeliness of Walls' post-conviction petition. "Ineffective assistance of post-conviction counsel is not itself a cognizable federal constitutional violation and may not serve as cause for a procedural default." Steward v. Gilmore, 80 F.3d 1205, 1212 (7th Cir. 1996).
While Buelow precludes this court from disturbing the state court's finding of untimeliness, the court notes that the state court could have taken the reason for Walls' lateness into account before dismissing his petitions. The statute allows the reviewing court to excuse the untimeliness if "the petitioner alleges facts showing that the delay was not due to his or her culpable negligence." 725 ILL. COMP. STAT. 5/122-1(c). But see Harris v. DeRobertis, 932 F.2d 619, 622 (7th Cir. 1991) (noting that "during the more than forty years since the [culpable negligence] provision was included, the Illinois courts have failed to produce even a single published opinion in which the court found a lack of culpable negligence"). Further, the Illinois Supreme Court recently ruled that "the time limit found in section 122-1 is a statute of limitations and that defendant's failure to file his petition within the limitations period did not deprive the trial court of jurisdiction to consider defendant's petition." People v. Wright, No. 84721, 1999 WL 1051995, at *4 (Ill. Nov. 18, 1999).
As such, Walls is precluded from raising any of the five claims now unless he can show that it is more likely than not that no reasonable trier of fact would have convicted him absent the alleged constitutional violations. After reviewing the record submitted by the parties, the court finds that Walls fails to meet this stringent standard. Not only do the five claims raised by Walls fail to evidence the possible conviction of an innocent man, but they fail to set forth cognizable constitutional violations even apart from the specter of procedural default.Ineffective Assistance of Appellate Counsel
To the extent this claim is based on his counsel's failure to notify Walls of the Illinois Supreme Court's denial of his petition for leave to appeal, it does not bear on his guilt or innocence. Further, it is not even a cognizable claim:
[T]here is no right to competent counsel in a discretionary appeal such as [the petitioner's] appeal to the state supreme court. The constitutional right to counsel is guaranteed to a defendant both for trial and for the first appeal as of right. However, there is no constitutional right to counsel to pursue discretionary state appeals.Buelow, 847 F.2d at 426 (citing Ross v. Moffitt, 417 U.S. 600 (1974)). Since Walls had no constitutional right to counsel for his appeal to the Illinois Supreme Court, he could not have been deprived of the effective assistance of counsel by his counsel's failure to notify him of the petition's denial. See id. (quotingWainwright v. Torna, 455 U.S. 586, 587-88 (1982)).
To the extent Walls' claim is based on his appellate counsel's purported failure to argue that the trial counsel was constitutionally inadequate, it is factually wrong. Much of the brief submitted on direct appeal by Walls' appellate counsel was devoted to this issue. (Exh. B to Resp.'s Answer) As for the issues of prosecutorial misconduct and trial court error, those issues are non-starters, as discussed below. In any event, judging from the quality and depth of his appellate brief, the performance of Walls' appellate counsel appears to have been well above the minimum constitutional standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). Conflict of Interest
Walls' claim that a conflict of interest prevented his appellate counsel from effectively representing him is belied by the record in this case. Without expressing an opinion as to the legal merit of the notion that a conflict of interest exists between two public defenders representing the same defendant at different stages of the judicial process, it is clear that Walls' appellate counsel had no inhibitions about criticizing his colleague's performance. Indeed, ten of the twelve pages of argument in Walls' appellate brief were devoted to the ineffectiveness of Walls' trial counsel. (Exh. B to Resp.'s Answer) Denial of Right to Appeal
Walls does not indicate a basis for his assertion that he is entitled to appellate review of the issues and evidence raised in his post-conviction petitions. State collateral relief is not a federal constitutional right. See Montgomery v. Meloy, 90 F.3d 1200, 1206 (7th Cir.) ("No constitutional provision or federal law entitles [the habeas petitioner] to any state collateral review."), cert. denied, 519 U.S. 907 (1996). Consequently, state courts' application of procedural rules — here, the statute of limitations — to those proceedings is not the proper subject of a habeas petition. See id. ("Unless state collateral review violates some independent constitutional right, such as the Equal Protection Clause . . . errors in state collateral review cannot form the basis for federal habeas corpus relief.").
Given that Walls does not claim that the state procedural rule was applied inconsistently in his case, this claim does not implicate a federal right. In any event, although Walls insists that he was wrongly convicted, the new issues and evidence raised in his post-conviction petitions do not provide any indication that a reasonable trier of fact would have found him innocent. Trial Court Error
Walls attached two affidavits to his post-conviction declarations, neither of which provide a convincing basis for Walls' claim of innocence. (Exh. F to Resp.'s Answer) The first, from an investigative firm, was submitted to support Walls' alibi defense by purporting to show the length of time it took to traverse the routes traveled by the victim and Walls on the morning of the assault. The affidavit set forth the routes taken by the two investigators, along with their travel times. Even assuming that the travel times accurately reflect what happened on the day of the assault, they do not appear to preclude Walls' commission of the assault, only to make it slightly more difficult for him to have done so. The investigators' trip from the site of the assault to Walls' workplace took fourteen minutes, while the prosecutor represented that it took a detective eleven minutes to make the same trip. The three-minute discrepancy hardly invalidates the prosecutor's representation, much less casts doubt on Walls' conviction.
The second affidavit, from one of Walls' fellow inmates, was submitted to show that the prosecution fabricated the unavailability of one of the investigating detectives. The detective was said to be hospitalized. Walls' friend supposedly called a member of the hospital's records department, who told him that there was no record of that patient from the time period in question. Notwithstanding the dubious nature of this affidavit — especially given the general confidentiality of medical records — even if true, it has no bearing on Walls' innocence.
Walls asserts that by allowing the parties to stipulate as to the testimony of an absent witness, and by allowing the prosecutor to refer to the stipulated testimony in his closing rebuttal, the trial court abused its discretion and violated state and federal rules. Walls does not indicate how the trial court's error gave rise to a violation of his constitutional rights of course, if the trial court violated state rules, that would be of no import on habeas review. "Violations of state law alone are, of course, not cognizable in federal habeas corpus proceedings. . . . A habeas petitioner must show that the state law violation resulted in a violation of federal constitutional rights." Steward, 80 F.3d at 1214.
Even when a ruling has constitutional ramifications, a habeas petitioner challenging a state court's evidentiary ruling faces a high hurdle:
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) (citations omitted).
The substance of the testimony in question — to have been offered by an investigating detective who was hospitalized during trial — renders the trial court's ruling immaterial to the habeas inquiry. The testimony does not directly bear on Walls "innocence, much less compromise Walls' right to a fair trial. According to Walls, the prosecutor referred to the detective's assertion that he drove from the site of the assault to Walls' workplace — a distance of 3.6 miles — in eleven minutes. This had an impact on Walls' alibi defense, through which Walls attempted to show that it was impossible for him to have committed the assault and made it to work by the time stamped on his time card. The notion that Walls could have driven the 3.6 miles in eleven minutes is hardly a stretch of common sense, nor is there any indication that the prosecutor's reference to it served as the basis of the judge's decision to convict Walls. Prosecutorial Misconduct
Walls claims that the prosecutor's reference to the absent detective's testimony was "highly improper" and "overpowered" the testimony of defense witnesses. (Habeas Pet. at 5) Assuming that Walls is correct that the parties stipulated to the testimony, it was not error for the prosecutor to have referenced that stipulation. Regardless, even absent a stipulation, any resulting error is inconsequential for purposes of habeas review. For the same reasons set forth above, the substance of this testimony could not have precluded Walls from receiving a fair trial, nor could it have served as the basis for his conviction.
None of the five claims that Walls failed to raise properly in state court present a "`fundamental miscarriage of justice' . . . where "a constitutional violation has probably resulted in the conviction of one who is actually innocent.'" Rodriguez, 193 F.3d at 917 (citing Murray v. Carrier, 477 U.S. 478, 495-96 (1986)). As such, the claims have not been exhausted, and thus are procedurally defaulted under 28 U.S.C. § 2254. The court cannot review them. Ineffective Assistance of Trial Counsel
Of the six claims Walls raises in his habeas petition, he raised only his ineffective assistance of trial counsel claim on direct appeal. As such, it is the only claim not procedurally barred, and the only claim that this court properly may address. That is not to say that the court will undertake a de novo review of the trial counsel's performance. Rather, apart from issues of pure constitutional interpretation, this court must defer considerably to the state courts' rulings.
As long as the Illinois Appellate Court employed the proper constitutional framework in analyzing Walls' ineffective assistance of trial counsel claim, this court will leave any reasonable determination reached by that court undisturbed. In Lindh v. Murphy, 96 F.3d 856, 870 (7th Cir. 1996) rev'd on other grounds, 521 U.S. 320 (1997), the Seventh Circuit rejected the notion that the recently amended § 2254 authorizes the issuance of a habeas writ whenever a court errs. While the federal courts must ensure that state courts adhere to the legal principles set forth by the United States Supreme Court, "when the dispute lies not in the meaning of the Constitution, but in its application to a particular set of facts . . . sec. 2254(d)(1) restricts the grant of collateral relief to cases in which the state's decision reflects "an unreasonable application of the law." Id. In other words, § 2254(d)(1) "tells federal courts: Hands off, unless the judgment in place is based on an error grave enough to be called "unreasonable.'" Id.
The Lindh court's synopsis of the state court's approach lends further insight into the scope of this court's review: "The [state court] opinion . . . is careful; it correctly states the holdings of [the relevant cases]; it does not transgress any clearly established principles; instead it addresses a matter of degree about which thoughtful people can, and do, differ." Id. at 877. According to Lindh, second-guessing the state court's holding in that context would be inappropriate, for "[b]y restricting in the new § 2254(d)(1) the scope of the extraordinary relief provided by the writ of habeas corpus, Congress has instructed the inferior federal courts to refrain from this sort of fine tuning." Id.
In this case, the Illinois Appellate Court proceeded under the correct legal framework, analyzing the claim under the two-pronged standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). In response to Walls' argument that his supervisor should have been called to testify that Walls was at work shortly after the assault took place, the appellate court first noted that there was no indication as to what the supervisor's testimony would have been "other than defendant's own unsupported assertion." (Exh. A to Resp.'s Answer at 5) More importantly, the court reasoned that, because the prosecution had stipulated to the authenticity of Walls' time card, "[t]he additional testimony of the supervisor that defendant was there at that time would have been cumulative and would not have provided a different outcome." (Id. at 6-7) Further, Walls "makes no contention that counsel did not interview the supervisor," and so "the decision not to call the supervisor may have been a trial tactic which will not be inquired into." (Id. at 7)
Walls' habeas petition alludes to other aspects of his trial counsel's alleged ineffectiveness, in particular his purported failure to preserve an unspecified issue for appeal. Because this allegation was not raised on direct appeal — or, to the extent it is based on facts outside the trial record, in a timely post-conviction petition — this court cannot consider it. In any event, on a practical level, Walls' failure to set forth a factual basis for the allegation renders substantive review impossible.
These fact-specific findings regarding the trial counsel's performance led the Illinois Appellate Court to conclude that Walls "has not overcome the Strickland standard for establishing incompetence." (Exh. A to Resp.'s Answer at 7) Here, as in Lindh, this answer "cannot be called "unreasonable' even if it is wrong." 96 F.3d at 876-77. Under these circumstances, this court will not disturb the state court's ruling. Conclusion
Even if the court were to conduct a de novo review of Walls' ineffective assistance of counsel claim, his failure to provide an affidavit from the alibi witness whom he believes should have been called to testify might prove another insurmountable obstacle to the granting of his habeas petition. See Howard, 185 F.3d at 723-24 ("Were we to reach the merits of this claim, [the petitioner's] failure to submit supporting affidavits from these potential witnesses would severely hobble his case.").
For these reasons, Walls' petition for a writ of habeas corpus is denied, and this action is dismissed.