Opinion
No. 97 C 1679
February 7, 2000
MEMORANDUM OPINION AND ORDER
Matthew Przybylowski brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, claiming that his continued imprisonment violates the Constitution. Section 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (1996), provides the applicable law in this case. After carefully reviewing Przybylowski's petition, the court denies his petition and dismisses the action for the reasons explained below.
I. BACKGROUND
A. Relevant Facts
In reviewing a petition for writ of habeas corpus under § 2254, a federal court presumes that the facts found by state courts are correct. See Sumner v. Mata, 449 U.S. 539, 547 (1981). A petitioner has the burden to establish, by clear and convincing evidence, that a state court's factual determinations are erroneous. See 28 U.S.C. § 2254 (e)(1). As Przybylowski does not challenge the Illinois appellate court's findings of fact, the court adopts the facts set forth in People v. Przybylowski, No. 1-93-4496, 698 N.E.2d 720 (Ill.App.Ct. 1st Dist. 1996). See US. ex rel. Green v. Green, 667 F.2d 585, 587 (7th Cir. 1981); Kines v. Godinez, 7 F.3d 674, 677 (7th Cir. 1993), cert. denied, 510 U.S. 1200 (1994). The court notes, however, that Przybylowski raised certain points in the appellate court that went unaddressed. Accordingly, the court will include these points, where relevant.
Moreover, the court notes the clear disparity in the record between Przybylowski's account of certain events and that offered by the State. Where relevant, the court will also recount these disputes, relying on Przybylowski's petition, the State's answer, and accompanying exhibits. The exhibits include: 1) briefs filed by both parties on direct appeal and the Illinois Appellate Court's decision; and 2) Przybylowski's petition for leave to appeal to the Illinois Supreme Court with that court's denial of his petition.
On October 29, 1989, firefighters arrived at an abandoned building that someone had attempted to set ablaze. In the kitchen of the building, one of the firefighters discovered the body of 14 year old Pedro Martinez and immediately notified the Chicago Police Department. Martinez's face and head were severely bruised, and police found a loaded revolver in his back pocket. Police also recovered two blood-stained pieces of wood and observed gang graffiti on the walls of the building. A forensic pathologist testified at trial that Martinez died of multiple injuries due to blunt trauma. These injuries resulted from being hit with gun butts, fists, feet, and pieces of wood. The pathologist further testified that a hexagonal pattern injury on Martinez's chest was consistent with the sole of a sneaker.
The death apparently occurred on or about October 27, 1989.
On November 11, 1989, CPD Detective McCann questioned Morris Denton, a suspect in the Martinez murder, at Area 3 headquarters. Denton apparently implicated others, including Przybylowski and one James Phillips, and McCann learned that both Przybylowski and Phillips were in police custody on unrelated charges at another location. Przybylowski was subsequently transported to Area 3 headquarters and questioned by McCann. During McCann's first interview with Przybylowski, Przybylowski denied being present or involved in the murder. Following a second, later interview, however, Przybylowski signed a written statement confessing his participation. According to the statement, Przybylowski admitted being present and acting as lookout while four of his friends beat Martinez. The statement further indicated that Martinez once attempted to flee and that Przybylowski kicked him back into the room. Beyond this, Przybylowski's and the State's accounts of what happened diverge, with Przybylowski maintaining that McCann beat him into signing a confession that was coerced and untrue.
At trial, CPD Detective McCann testified that Przybylowski confessed his involvement in Martinez's murder around midnight. According to McCann, Przybylowski admitted that he, Ricky Hernandez, Morris Denton, Xavier McEthelby, and James Phillips had flashed "Folks" gang signs at Martinez and walked him into the abandoned building. Przybylowski acted as lookout, standing at the door while his friends beat Martinez with a handgun, shotguns, sticks, and boards. McCann stated that Przybylowski specifically admitted to kicking Martinez in the chest, thereby propelling him back into the room, when Martinez tried to flee midway through the beating. The other four young men then further beat Martinez until he stopped moving. Having heard this confession, McCann testified, he called for an assistant state's attorney.
Or Xavier McEllersby. The record reflects both forms of this individual's last name.
On cross-examination, Jack Rodgon, Przybylowski's counsel, asked McCann when his first interview with Przybylowski took place. The State objected. At a side bar, Rodgon explained that his theory of the case was that McCann beat the confession out of Przybylowski after he asserted his innocence during the first interview. Rodgon sought to elicit the timing of the two interviews and the alleged confession as well as Przybylowski's initial exculpatory statement to McCann. (R. C77.) The State argued that Przybylowski's exculpatory statement during this first interview was inadmissible hearsay. (R. C76.) The trial court ruled that if Rodgon proceeded with his line of questioning, hoping to prove the confession was coerced, it would allow McCann to testify to every word exchanged between McCann and Przybylowski, including the substance of a co-arrestee's statement, which implicated Przybylowski. (R. C77, C79-80.) Rodgon noted that he would object to any admission of a co-arrestee's statement on Confrontation Clause grounds, given that he would be unable to question the co-arrestee. (R. C79.) The trial court then rejected Rodgon's more limited offer to recall McCann after Przybylowski's testimony for the limited purpose of corroborating Przybylowski's testimony that he had initially denied any involvement in the Martinez murder. (R. C80-81.)
When recalled during the State's rebuttal case, McCann categorically denied ever striking or threatening Przybylowski. He also denied seeing any eye injury.
The court also rejected Rodgon's alternative offer to cross examine McCann merely about the time frame regarding the two interviews. Specifically, Rodgon proposed simply "go[ing] into the fact that he [McCann] interviewed him [Przybylowski] initially and he [McCann] stopped and came back." (R. C83.) Even though Rodgon now disavowed intent to elicit Przybylowski's denial from McCann, the court apparently feared that Rodgon would somehow raise the issue in closing argument and thus rejected the alternative proposal as well. (R. C83.)
Nevertheless, when cross resumed, Rodgon was able to cross examine McCann as to the subject areas specified in his alternative proposal. McCann stated that he first read Przybylowski his Miranda rights at 7:30 p.m., during the first interview, after which that interview ended. (R. C84-85.) Rodgon asked no further questions about the initial interview except to elicit from McCann the statement that McCann observed no injuries on Przybylowski's person. (R. C85.) Rodgon then questioned McCann about the second interview. McCann testified that he took an oral statement from Przybylowski around midnight in the same interview room after Mirandizing him a second time. (R. C85-86.) McCann also testified that he contemporaneously summarized Przybylowski's statement in a general progress report. (R. C87-88.) Rodgon confirmed that McCann had testified on direct that Przybylowski orally admitting kicking Martinez in the stomach or chest area (R. C88), then elicited from McCann the admission that his report did not include this statement. (R. C89.) Rather, McCann admitted that his report stated that Przybylowski had admitted to pushing Martinez back with his feet, not to kicking him. (R. C89-90.) Finally, Rodgon elicited from McCann the fact that Przybylowski had been in custody for about 24 hours by the time he allegedly gave McCann the oral statement. (R. C90.)
On re-direct, the State elicited the series of actions McCann had taken throughout the course of the evening of November 11 and the early morning hours of November 12. McCann testified that after interviewing Morris Denton around 4:00 p.m on November 11, he learned that Przybylowski and Phillips were in custody at another location on a charge unrelated to the Martinez murder and requested their transfer to Area 3. (R. C98-99.) Przybylowski arrived first, around 6:00 or 6:30 p.m., and was put in an interview rom around 7:00 or shortly thereafter. (R. C99.) The State then elicited testimony from McCann that McCann transported Phillips to Area 3 around 8:30 or 9:00 p.m. (R. C99-100.) McCann's partner then interviewed Phillips, though McCann stated that he also was briefly present during that interview. (R. C100.) Rodgon objected, and the court issued a limiting instruction to the jury indicating that the information about Phillips was being elicited solely for the purpose of showing McCann's course of conduct during the Martinez investigation. (R. C100.) McCann further testified that he then went out into the field to recover certain objects, one of which was in evidence as a People's exhibit. (R. C101.) Finally, McCann testified that he then went back to interview Przybylowski a second time, at which point he confronted Przybylowski with what he hd learned from talking to Phillips and Denton and from going into the field. (R. C101.) The court overruled Rodgon's objection to this testimony without comment. (R. C101.)
On re-cross, Rodgon asked for a sidebar, where he moved for a mistrial on the basis of the State's questioning about the Phillips investigation and the actions McCann took due to that questioning; Rodgon also moved to strike all questions relating to and actions taken on the basis of that investigation. (R. C102-03.) The court offered two bases for the propriety of such questioning. First, the court indicated that the State had a right to show what McCann was doing and where Przybylowski was during the 24 hours Przybylowski was in custody to rebut the implication of coercion. (R. C105, 107). The court further noted that the State did not bring in the substance of any co-arrestee's statement. (R. C107-08.) Second, the court stated that, given Przybylowski's coercion defense, it would instruct the jury that the information was being received to aid its determination of whether the confession was voluntary. (R. C106-07, 108). Ultimately, the court denied Rodgon's motions and ruled in accordance with the first rationale it had described: "This is being received solely and only for showing the course of conduct by this officer. It's not probative on the issue of guilt." (R. C109.)
The State then called assistant state's attorney James Bailey, who testified that he interviewed Przybylowski in the early morning hours of November 12. Bailey stated that he Mirandized Przybylowski in McCann's presence, then transcribed his statement, word for word, as Przybylowski uttered it. Bailey further testified that Przybylowski signed each page of the statement after being given the opportunity to indicate whether corrections needed to be made to the statement. Bailey also maintained that he had given Przybylowski the option of making a court-reported statement but admitted on cross that his own report indicated that this option was not mentioned to Przybylowski until after Przybylowski had signed the statement Bailey transcribed. He further admitted that McCann was standing at the door during his conversations with Przybylowski and that McCann was present when Przybylowski signed the statement. Finally, Bailey stated that he did not notice any physical markings on Przybylowski, nor did Przybylowski complain of any police mistreatment.
Przybylowski, in stark contrast, maintained his innocence at trial and on direct appeal, claiming that his confession was involuntarily given pursuant to beatings and threats by McCann. At trial, Przybylowski testified that he neither participated in nor was present during Martinez's beating. He admitted knowing Hernandez, Phillips, and McEthelby but denied knowing Denton. He also denied being a member of the Latin Kings, showing the jury portions of his body that would normally be tattooed were he a gang member. Przybylowski further testified that after he denied any involvement in Martinez's murder, McCann repeatedly struck him and threatened him with additional blows and with the use of a "black box." He estimated that McCann struck him between 20-30 times over the course of the evening of November 11 and that he sustained bruises to his face, including an injury to his right eye, a photograph of which he identified. He admitted on cross, however, that he had not complained of any physical injuries to hospital staff when he was taken to Cermak Hospital for a physical exam after signing the statement, even though the staff specifically examined his eyes, nose, and ears.
Przybylowski maintained that the handwritten statement prepared by Bailey was untrue and coerced by the repeated beatings. He repeatedly denied that Bailey had written out the statement in his presence. He also testified that when Bailey read the statement to him, he told Bailey that it was untrue, at which point Bailey left the room. According to Przybylowski, McCann then entered the room, knocked him to the floor, kicked him, and demanded that he sign the statement. Przybylowski stated that he ultimately did sign the statement at 1:20 a.m.
The trial judge himself then examined Przybylowski. The judge first asked Przybylowski to confirm his testimony that he didn't sign the statement the first time it was handed to him, that Bailey then left the room, and that he eventually did sign the statement. (R. C196-97.) The judge then asked about the circumstances surrounding the signing, specifically, where Przybylowski was when he signed the statement; who was present; and what, if anything, was said prior to Przybylowski's signing of the statement and by whom. (R. C197.)
After the defense rested, the State sought to introduce evidence to rebut Przybylowski's testimony denying gang affiliation as well as any acquaintance with Denton. Specifically, the State sought to introduce the testimony of another officer who had arrested Przybylowski and Denton for spray painting gang graffiti along with two other individuals in a park two days after the murder. At a sidebar, the State contended that the evidence impeached Przybylowski's credibility by contradicting his denials. (R. D4-5, D9-10.) The court agreed with Rodgon's objection to the admissibility of the gang affiliation and arrest evidence but ruled that the State could use the incident in a limited fashion to rebut the denial regarding Denton. (R. D11, D13, D15.) Specifically, the court ruled that the officer could testify that he "stopped" Przybylowski in a park "in the company of" Denton but barred any mention of the gang graffiti or the arrest. (R. D13.) The court acknowledged Rodgon's argument that Przybylowski could have been seen in the company of a person he did not know but pointed out that Rodgon was free to argue that point before the jury.
On direct examination, the State led the witness, Officer Thome, to elicit the limited testimony permitted by the court. During cross, however, Rodgon specifically brought out the fact that Przybylowski had been arrested, asking Thome whether he had arrested Przybylowski; how many people were in the park that night, which was Halloween; and if Thome was busy stopping people in the park that night. (R. D20-21.) The State objected, and another side bar was held in which the court ruled that Rodgon had opened the door to the gang information by insinuating that Thome was harassing people in the park and that the State had a right to dispel the innuendo thereby created. (R. D22, D24-25.) Over Rodgon's objection, the State thus was permitted to allow Thome to explain why he stopped Przybylowski, and Thome testified that he had seen Przybylowski and Denton spray painting gang slogans, specifically Latin Kings, on the park walls. (R. D29.) The court then stated that the jury would be instructed that that information could only be used for impeachment purposes: specifically, whether Przybylowski knew Denton. (R. D26.)
Following a jury trial in Cook County Circuit Court, Przybylowski was convicted of first-degree murder on an accountability theory. He was sentenced to 20 years imprisonment.
B. Procedural History
Following his conviction, Przybylowski filed a direct appeal to the Appellate Court of Illinois, where he raised four claims. See People v. Przybylowski, No. 1-93-4496, 698 N.E.2d 720 (Ill.App.Ct. 1st Dist. 1996) (unpublished opinion). Przybylowski argued that: 1) he was denied a fair trial when the trial court restricted Rodgon's cross-examination of McCann; 2) he was denied a fair trial due to a) improper admission of proof of other crimes and gang activity, b) improper admission of gruesome photos of the victim, and c) improper prosecutorial closing arguments; and 3) the trial court injected itself directly and prejudicially into the trial by a) questioning Przybylowski before the jury, b) improperly bolstering Thome's testimony through questioning Thome, reprimanding Rodgon, and apologizing to Thome for Rodgon's conduct, all before the jury, and c) refusing to hear Przybylowski's motion to suppress statements.
The appellate court affirmed Przybylowski's conviction and sentence, finding Przybylowski waived those arguments not raised either during trial or in post-trial motions and ruling in favor of the State on the merits of each claim. Specifically, the court found arguments (3)(a) and (3)(c) waived, though it conducted a limited review of the merits to determine whether the trial court had committed plain error, finding none on either claim. The court ruled on the merits on all of Przybylowski's other claims, rejecting each.
Przybylowski then sought review of the appellate court's decision in the Illinois Supreme Court, raising most but not all of the claims he had raised in the appellate court. Each claim he raised, however, was a claim he had raised in the appellate court. Specifically, he alleged: 1) denial of his Sixth Amendment right to confront witnesses against him — specifically, McCann — when the trial court threatened Rodgon with allowing the State to introduce the substance of a co-arrestee's confession, thereby curtailing Rodgon's cross-examination; 2) improper admission of evidence of other crimes and gang membership; and 3) improper trial court conduct in questioning Przybylowski and Thome, reprimanding Rodgon, and apologizing to Thome. The Illinois Supreme Court denied Przybylowski's petition for leave to appeal. See People v. Przybylowski, 667 N.E.2d 1061 (Ill. 1996).
Przybylowski did not seek post-conviction relief in the Illinois courts but instead filed the petition for writ of habeas corpus that is now before this court. Przybylowski now raises two grounds for relief: 1) denial of a fair trial due to the trial court's threat to permit the State to introduce a co-arrestee's confession, thereby curtailing Rodgon's cross-examination of a crucial state witness; and 2) denial of a fair trial due to the trial court's evidentiary rulings permitting inadmissible and prejudicial testimony as well as its conduct interjecting itself into the trial.
II. LEGAL STANDARDS
A. Exhaustion and Procedural Default
The preliminary step in any habeas corpus proceeding is to assess whether the petitioner has complied with the requirements of exhausting state remedies and avoiding procedural default of substantive claims by adequately presenting them to the state courts. Lostutter v. Peters, 50 F.3d 392, 394 (7th Cir.), cert. denied, 516 U.S. 843 (1995), overruled on other grounds by Hogan v. McBride, 74 F.3d 144, 147 (7th Cir. 1996). A petitioner exhausts his or her state remedies "when claims have been presented to the highest state court for a ruling on the merits or when the claims could not be brought in state court because no remedies remain available at the time the federal petition is filed." Farrell v. Lane, 939 F.2d 409, 410 (7th Cir.), cert denied, 502 U.S. 944 (1991) (citations omitted).
Procedural default refers primarily to two situations. The first occurs when the petitioner presents federal claims in his or her habeas petition that he or she did not "fairly present" to the state courts, thereby depriving them of the first opportunity to address the claims. Jones v. Washington, 15 F.3d 671, 675 (7th Cir.), cert denied, 512 U.S. 1241 (1994), overruled on other grounds by Hogan v. McBride, 74 F.3d 144, 147 (7th Cir. 1996). The second occurs where the state court decision supporting the petitioner's confinement rests on an independent and adequate state law ground, whether substantive or procedural. See Coleman v. Thompson, 501 U.S. 722, 729 (1991). In the latter case, the petitioner may have failed to pursue all of the appeals required by state law in a timely manner. See, e.g., Jenkins v. Gramley, 8 F.3d 505, 507-08 (7th Cir. 1993). Alternatively, a petitioner may have diligently pursued every state appeal yet failed to raise in those appeals the claims he or she later asserts in a federal habeas petition. See, e.g., Resnover v. Pearson, 965 F.2d 1453, 1456, 1458 (7th Cir. 1992), cert. denied, 508 U.S. 962 (1993).
Federal law determines the level of specificity with which a claim must be asserted in state court to be preserved, but state law dictates whether a claim must be asserted in the first instance and how far that claim must be pursued to avoid procedural default. See US. ex rel. Balderas v. Godinez, 890 F. Supp. 732, 738 (N.D. Ill. 1995). In Illinois, "a claim that could have been asserted on direct appeal but was not is considered waived — it cannot be revisited in any later direct or collateral proceeding, even where petitioner's constitutional rights are at stake." See id. Accordingly, procedural default bars federal habeas review of a claim unless the petitioner can either show "cause for the default and actual prejudice as a result of the alleged violation of federal law" or demonstrate that failure to consider the defaulted claim "will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750.
Cause refers to "something external to the petitioner, something that cannot fairly be attributed to him." Coleman, 501 U.S. at 753. Mere attorney ignorance or inadvertence is not cause, for the attorney is the petitioner's agent and "the petitioner must `bear the risk of attorney error.'" Id., (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)). Attorney error that constitutes constitutionally ineffective assistance of counsel does, however, constitute cause. See id. at 753-54. Examples of objective, external factors that excuse procedural default include factual or legal defenses originally unavailable or interference by officials that makes compliance with state procedure impracticable. See Murray, 477 U.S. at 492. Establishing prejudice requires showing "not merely that the errors of [petitioner's] trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." US. v. Frady, 456 U.S. 152, 170 (1982).
"Miscarriage of justice" refers to a narrow exception delineated in Murray that permits federal habeas courts to excuse procedural default upon a showing that a constitutional violation "has probably resulted in the conviction of one who is actually innocent." Murray, 477 U.S. at 496. To establish a claim of actual innocence, a petitioner must show "a fair probability that in light of all the evidence . . . the trier of facts would have entertained a reasonable doubt of his guilt." Kuhlmann v. Wilson, 477 U.S. 436, 455 n. 17 (1986). This includes not only evidence that was arguably wrongly excluded but also evidence that was illegally admitted. See id. Moreover, claims of legal — as opposed to actual (factual) — innocence do not meet the miscarriage of justice standard. See Sawyer v. Whitley, 505 U.S. 333, 339 (1992), limited on other grounds by Schlup v. Delo, 513 U.S. 298 (1995).
B. Merits
A federal habeas court's review of state court determinations on the merits is limited. Under the 1996 Act's amendments to § 2254, the court "shall not" grant the writ "with respect to any claim that was adjudicated on the merits in state court proceedings" unless the adjudication of that claim:
(1) resulted in a decision that 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.28 U.S.C. § 2254 (d). See also Lindh v. Murphy, 96 F.3d 856, 861 (7th Cir. 1996) (en banc), rev'd on other grounds, 521 U.S. 320 (1997) (reversal limited to holding that 1996 Act's amendments to § 2254 do not apply retroactively to non-capital habeas petitions filed before the Act's effective date, April 24, 1996). Moreover, § 2254 also instructs federal habeas courts to presume that state court determinations of factual issues are correct, a presumption that can only be rebutted by a petitioner who shows clear and convincing evidence to the contrary. See 28 U.S.C. § 2254 (e)(1).
Subsection (d)(1)'s "contrary to" provision only pertains to questions of law. See Lindh, 96 F.3d at 868-69. A federal habeas court is thus "free to express an independent opinion" on whether a state court has deviated from the Constitution on a legal question in contravention of United States Supreme Court precedent. Id.
Subsection (d)(1)'s "unreasonable application" provision pertains to questions of application of law to facts, that is, "mixed question[s] of law and fact." Lindh, 96 F.3d at 870. Unlike the "contrary to" provision, here a federal habeas court cannot express the same type of "independent opinion." Id. at 870-71. Rather, the court must honor "reasonable" state court decisions where "the constitutional question is a matter of degree, rather than of concrete entitlements." Id. at 871. Determining whether the state court's assessment was "unreasonable" requires federal habeas courts "to take into account the care with which the state court considered the subject." Id. Where the state court offers "a responsible, thoughtful answer" after "a full opportunity to litigate" the question, a federal habeas court must accept that answer as "adequate to support the judgment" even if it believes the state court decision was wrong. Id. As the Seventh Circuit has indicated, the standard for upsetting a state court judgment is a demanding one; the 1996 Act's amendments to § 2254 tell federal courts "Hands off, unless the judgment in place is based on an error grave enough to be called `unreasonable.'" Id. at 870.
While § 2254(d)(1) applies to questions of law and mixed questions of law and fact, § 2254(d)(2) applies only to pure factual determinations. Gomez v. Acevedo, 106 F.3d 192, 199 n. 7 (7th Cir.), vacated on other grounds, 522 U.S. 801 (1997). These provisions come into play when habeas petitioners contest as incomplete or inaccurate particular determinations on subsidiary factual matters, which are often capable of direct proof in court. Id. A determination of a factual issue made by a state court shall be presumed to be correct, and the applicant has the burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254 (e)(1).
III. ANALYSIS
The court notes that Przybylowski's petition originally named both the warden who currently has custody of Przybylowski and the Illinois Attorney General as respondents in this action. Przybylowski's reply, however, names only the warden, Thomas Page. The court assumes that Przybylowski is now proceeding only against Page but notes that the Illinois Attorney General cannot in any event be a proper party respondent in this action. Rule 2 of the Rules Governing Section 2254 Cases in the United States District Courts provides:
28 U.S.C. § 2254 R. 2(a). Petitioner is presently serving the twenty-year sentence he challenges in this court under the custody of respondent Page; the Attorney General of the State of Illinois does not have custody of petitioner and thus cannot be a proper party respondent in this action.
If the applicant is presently in custody pursuant to the state judgment in question, the application shall be in the form of a petition for writ of habeas corpus in which the state officer having custody of the applicant shall be named as respondent.
As exhaustion of state court remedies is not at issue in this case, the court will proceed directly to respondent's contentions that Przybylowski's claims are either factually insufficient, noncognizable on federal habeas review, procedurally defaulted, or meritless.
The State concedes that Przybylowski has exhausted his state remedies.
A. Factual Sufficiency of Petition
Respondent contends that both of Przybylowski's habeas claims are factually insufficient and thus warrant dismissal. Rule 2 of the Rules Governing § 2254 Cases in the United States District Courts sets forth the applicable rule regarding fact pleading as follows:
[The petition] shall specify all the grounds for relief which are available to the petitioner and of which he has or by the exercise of reasonable diligence should have knowledge and shall set forth in summary form the facts supporting each of the grounds thus specified.28 U.S.C. § 2254 R. 2(c).
Respondent cites no Seventh Circuit precedent requiring dismissal of Przybylowski's petition. Although the court recognizes that Przybylowski's petition lacks factual specificity, it chooses instead to look to the statement of facts included in his Illinois appellate and supreme court petitions as the factual details relevant to Przybylowski's habeas petition were included in these state court filings. Accord US. ex rel. Howard v. DeTella, 959 F. Supp. 859, 862 n. 2 (N.D. Ill. 1997). Moreover, the court notes that the grounds Przybylowski now raises are essentially the same grounds he raised in state court. As a result, it is not difficult to ascertain the facts on which Przybylowski relies. Ground 1, the Confrontation Clause claim, clearly presents the same claim as Przybylowski made in state court and thus relies on precisely the same facts.
The facts Przybylowski intends to utilize in Ground 2 are somewhat harder to ascertain because he does not enumerate which rulings and actions he finds objectionable, but any questions raised are clarified by his reply to respondent's answer. Przybylowski's reply makes it clear that he objected to the trial court's decisions to: 1) admit evidence of gang activity and other crimes, specifically, spray painting gang graffiti in a park; 2) question Przybylowski; 3) question Thome; and 4) reprimand defense counsel during his cross examination of Thome and apologize to that witness in the jury's presence. As Przybylowski raised each of these points in state court, it is clear that he relies on the same facts. Consequently, respondent has not been prejudiced in answering Przybylowski's petition, and the court declines to dismiss his petition for lack of factual specificity.
Although Przybylowski also challenged other evidentiary rulings in state court, namely the admission of gruesome photos of the victim and allegedly improper prosecutorial closing argument, that he does not raise in this court, his reference to "inadmissible and prejudicial testimony" (emphasis added) enabled respondent to recognize that he would only challenge the gang evidence and evidence of other crimes. And, indeed, respondent did answer only as to these points insofar as the evidentiary challenges are concerned.
B. Right of Confrontation
Przybylowski's first ground for habeas relief asserts that his
Sixth Amendment Right of Confrontation was denied, thereby denying him of [sic] a fair trial, when the State Trial Court Judge threatened the Petitioner's defense counsel with allowing the State to introduce inadmissible Bruton co-offender confession [sic], in order to curtail the cross-examination of a crucial state's witness. Sixth and Fourteenth Amendment violation.
Petition at 6. The "crucial state's witness" whose curtailed cross-examination Przybylowski objects to is Detective McCann. Specifically, Przybylowski complains that the trial court improperly restricted his cross-examination of McCann by threatening to admit the substance of a co-arrestee's statement if he questioned McCann about an exculpatory statement made during McCann's initial interrogation of Przybylowski. As Przybylowski presented essentially the same claim to the Illinois appellate and supreme courts, this court considers the claim on its merits.
Respondent apparently concedes that Przybylowski fairly presented his first habeas ground to the Illinois state courts as its answer addresses only the merits of the claim.
The appellate court declined to address the propriety of the trial court's alleged threat, holding that a decision on this point was unnecessary because Przybylowski was "not entitled to elicit from McCann his exculpatory custodial statement." Przybylowski, No. 1-93-4496 at 5. After noting that the statement would be inadmissible hearsay were it offered for its truth, the court rejected Przybylowski's argument that the statement could properly be elicited for a non-hearsay purpose. Specifically, Przybylowski argued that he sought to elicit the statement to corroborate his own testimony that he had initially denied any involvement in the murder and thus to show that his subsequent confession was involuntary. The appellate court, citing Illinois law, held that the trial court properly restricted this line of inquiry because "the probative value of an earlier exculpatory statement on the question of the voluntariness of a confession is too remote or tenuous to make the statement admissible." Id. at 6. The court further noted that the jury was in fact "adequately apprised of defendant's initial denial through his own testimony." Id. Consequently, the court found the restriction on cross-examination proper. As the Illinois Supreme Court denied Przybylowski's petition for leave to appeal, the appellate court's decision is the last reasoned decision on Przybylowski's Confrontation Clause claim.
Under 2254(d), this court cannot grant Przybylowski's habeas claim unless he shows that the appellate court's decision was contrary to U.S. Supreme Court precedent, an unreasonable application of such precedent, or was based on an unreasonable determination of the facts in light of the evidence presented. 28 U.S.C. § 2254 (d)(1) and (d)(2). Taking the two prongs of § 2254(d)(1) first — whether the appellate court's decision was contrary to or an unreasonable application of U.S. Supreme Court precedent — the court begins by finding that only one of the two analytical prongs applies to this case: the "contrary to" provision. As the appellate court relied on state law rather than federal law in disposing of Przybylowski's Confrontation Clause claim, this question before this court can only be whether the appellate court's disposition was contrary to established Supreme Court precedent.
The court notes as an initial matter that Przybylowski has the burden of pointing to an authoritative Supreme Court decision in order to secure habeas relief. See Lindh, 96 F.3d at 869. In his petition, Przybylowski relies primarily on Crane v. Kentucky, 476 U.S. 683 (1986) to demonstrate clear error by the appellate court. In Crane, the Supreme Court held that blanket exclusion of proffered testimony about the circumstances of a defendant's confession deprived him of a fair trial. Id. at 690. Evidence about the manner in which a confession was obtained is often highly relevant to its reliability and credibility. Id. at 691.
That Przybylowski did not cite Crane in the appellate court does not defeat his claim, for Przybylowski concededly fairly apprised that court of his reliance on federal constitutional law, and Crane was clearly on the radar screen of Confrontation Clause jurisprudence.
Although the Supreme Court held in Crane that the state court's imposition of a blanket exclusion of the defendant's proffered testimony about the circumstances of his confession deprived him of a fair trial, it did not hold that the defendant could present evidence that would be otherwise inadmissible. Instead, the court held that a state may not exclude exculpatory evidence at trial "[i]n the absence of any valid state justification." Crane, 476 U.S. at 690. "[W]e have never questioned the power of States to exclude evidence through the application of evidentiary rules that themselves serve the interest of fairness and reliability — even if the defendant would prefer to see that evidence admitted." Id.
Insofar as Przybylowski alleges a Confrontation Clause error in the trial court's refusal to permit Rodgon to elicit Przybylowski's exculpatory statement from McCann, the court finds that the trial court's refusal was proper. Eliciting Przybylowski's denial from McCann for its truth would, as the appellate court found, have been a violation of the hearsay rule. See Williamson v. U.S., 512 U.S. 594, 600-601 (1994) (holding that an exculpatory statement made by an accused after his arrest that is offered in his favor is inadmissible hearsay). The appellate court's finding here comports with Supreme Court precedent.
Nor can Przybylowski demonstrate constitutional error in the trial court's refusal to allow him to elicit the statement for the nonhearsay purpose of showing that his subsequent confession was not voluntary. The appellate court's holding that the probative value of the earlier exculpatory statement was too remote or tenuous to make the statement admissible also comports with Supreme Court precedent. Accordingly, this court finds that the trial court's refusal to permit Rodgon to elicit Przybylowski's exculpatory statement from McCann was not a constitutional violation under the Confrontation Clause.
Przybylowski also makes reference to Bruton v. United States, 391 U.S. 123 (1968), in his petition, stating that the judge threatened to allow admission of "inadmissible Bruton co-defender confession." Because this court finds that the exculpatory statement was properly excluded, it is unnecessary for this court to assess the propriety of the trial court's alleged threat or to address Bruton in this context.
In any event, even if the court were to find that it was an error for the trial court to deny admission of the statement, the error would have been harmless. The harmless error standard applies in determining whether habeas relief must be granted because of constitutional error of the trial type. Brecht v. Abrahamson, 507 U.S. 619, 638 (1993). In the present case, Przybylowski was able to put his denial in front of the jury, having testified to that denial himself. Furthermore, he was able to elicit the circumstances and time frame surrounding the two interviews despite the trial court's rejection of his alternative proposal during the sidebar. As the record makes clear, upon resumption of cross-examination, neither the trial court nor the State interfered with or objected to any of Rodgon's questions pertaining to "the fact that he [McCann] interviewed him [Przybylowski] initially and he [McCann] stopped and came back." (R. C83.) Rodgon asked questions and received answers indicating that McCann had Mirandized Przybylowski during both interviews; that the first interview took place around 7:30; that McCann left the interview room after the first interview; and that McCann elicited an oral statement from Przybylowski during the second interview, which took place hours later, around midnight. Rodgon further brought out that Przybylowski had been in custody for a total of 24 hours before giving this statement. Indeed, Rodgon was even able to elicit from McCann the admission that the report he contemporaneously made as he took down Przybylowski's alleged oral statement did not include the statement McCann had testified to on direct examination. Finally, Rodgon was able to question McCann about whether he observed any injuries on Przybylowski's person. Thus, the only statement Rodgon desired to elicit that he did not was Przybylowski's initial denial, which, as this court has found, he was able to present through Przybylowski himself.
The court notes that Przybylowski was in custody on an unrelated charge for most of the 24-hour period. He was brought to Area 3 for questioning in the Martinez murder around 6:00 or 6:30 on November 11, was first questioned at or after 7:00, allegedly gave an oral statement around midnight, and signed the written statement at issue around 1:20 a.m. on November 12. This means he was held for questioning in the Martinez murder for at most 7 hours and 20 minutes and that at most 6 hours and 20 minutes elapsed between the initial questioning and the signing of the statement.
McCann had testified that Przybylowski admitted to kicking Martinez in the chest or stomach, but his report indicated that Przybylowski pushed Martinez back with his feet.
With regard to review of factual determinations under 28 U.S.C. § 2254 (d)(2), Przybylowski does not challenge the Illinois appellate court's recitation of facts and has not offered "clear and convincing evidence" rebutting those facts as required by 28 U.S.C. § 2254 (e)(1). As a result, he has failed to establish that the state court's decision was based on an unreasonable determination of the facts in light of the evidence presented under 2254(d)(2). See Yancey v. Gilmore, 113 F.3d 104, 106 (7th Cir. 1997); United States v. Page, 1999 WL 199280, *6 (N.D.Ill. 1999); United States v. Gramley, 1998 WL 42470, *7 (N.D.Ill. 1998).
The appellate court's decision was not contrary to established Supreme Court precedent. The petition based on a Confrontation Clause violation is accordingly denied. The court's conclusion that the appellate court's decision was not contrary to established Supreme Court precedent obviates the need for this court to assess the propriety of the trial court's ruling that it would allow admission of the co-arrestee's statement if Przybylowski questioned McCann about an exculpatory statement made during McCann's initial interrogation of Przybylowski.
C. Propriety of Evidentiary Rulings and Trial Court's Conduct During Trial
Przybylowski's second ground for habeas relief asserts error on the part of the trial court in making improper evidentiary rulings and improperly injecting itself into his trial:
The Petitioner's right to a fair trial was denied by the rulings of the Trial Court, allowing inadmissible and prejudicial testimony into the case, and by the conduct of the trial court, interjecting himself into the trial, thereby unfairly prejudicing the Petitioner and his defense. Sixth and Fourteenth Amendment violation.
Petition at 6.
As the court has noted previously, supra section III. A., it will not dismiss Przybylowski's petition for lack of factual specificity. The court does, however, agree with respondent's contention that Przybylowski did not fairly present any of these claims as a federal constitutional claim in state court. Consequently, each of these four claims is procedurally defaulted. Przybylowski cannot bootstrap the claims made in Ground 2 to his Ground 1 claim, which, unlike Ground 2, was fairly presented as a federal constitutional claim in state court.
The Court notes that the fair presentment analysis has been categorized both as part of the exhaustion requirement, see, e.g., Picard v. Connor, 404 U.S. 270, 275 (1971), and as a type of procedural default. See, e.g., US ex rel. Sullivan v. Fairman, 731 F.2d 450, 453 n. 4 (7th Cir. 1984). Courts today appear to analyze fair presentment more often under the rubric of procedural default, and this court will accordingly adopt that approach.
Przybylowski devotes only one sentence in his brief to rebutting respondent's contention that he has procedurally defaulted his Ground 2 claims. Specifically, Przybylowski argues that
given the denial of the right of confrontation which occurred as enumerated in Petitioner's first claim, it is incorrect for respondent to argue that Petitioner's second claim, namely that he was denied a fair trial, when the trial court allowed inadmissible and prejudicial testimony into evidence, in addition to interjecting himself into the trial, that a Sixth Amendment federal constitutional claim has not been invoked.
Reply at 3. Just because one claim was fairly presented in state court does not mean that another was as well. Each claim made in a habeas petition must have been fairly presented in state court to be cognizable on federal habeas review. See, e.g., Bocian v. Godinez, 101 F.3d 465 (7th Cir. 1996) (finding an ex post facto and a cruel and unusual punishment claim fairly presented but not a void-for-vagueness claim). Moreover, the court notes that alleged evidentiary errors and trial court misconduct present claims wholly different from improper curtailment of cross-examination.
The Supreme Court has unequivocally held that state courts must be provided with a fair opportunity to apply controlling legal principles to the facts bearing upon a petitioner's federal constitutional claim. See Anderson v. Harless, 459 U.S. 4, 6 (1982). The court has specifically stated that it is not enough that the state courts knew all the facts necessary to support the federal claim nor even that the petitioner made a similar state-law claim. See id. Although the petitioner need not cite "book and verse of the federal constitution," he or she must have "fairly presented" the "substance" of the federal claim to the state courts. Picard v. Connor, 404 U.S. 270, 278 (1971).
The Seventh Circuit has fleshed out the fair presentment analysis even further, establishing a framework for the analysis of the issue. To establish fair presentment, a petitioner must, at a minimum, establish that in state court he or she:
1) rel[ied] on pertinent federal cases employing constitutional analysis; 2) rel[ied] on state cases applying constitutional analysis to a similar fact situation; 3) assert[ed] the claim in terms so particular as to call to mind a specific constitutional right; or 4) allege[d] a pattern of facts that is well within the mainstream of constitutional litigation.Verdin v. O'Leary, 972 F.2d 1467, 1473-74 (7th Cir. 1992) (adopting the framework fashioned by the Second Circuit in Daye v. Attorney General of New York, 696 F.2d 186, 194 (2d Cir. 1982) (en banc)). Fair presentment thus requires that a petitioner to present both the "operative facts" and the "controlling legal principles" to the state courts, thereby alerting them to the federal nature of the claim and permitting them to adjudicate the federal issue squarely. See id. at 1474. The Seventh Circuit has further emphasized that "[i]t is incumbent on the petitioner to `raise the red flag of constitutional breach.'" Id. at 1475. Finally, the court noted that in the event a petitioner cites only to state cases, a habeas court must determine whether, as a pragmatic matter, it is probable that the state tribunal was alerted to the federal quality of the claim, burden which the petitioner must also carry. See id. at 1475-76. The pragmatic reliance standard is hard to meet; in Bocian's cruel and unusual punishment claim for severity of sentence, this meant citing the Eighth Amendment in the opening section of the state court brief, contending that the sentence was disproportionate and therefore unconstitutional, and citing a state case in which a defendant claimed that the death penalty violated the Eighth Amendment. Bocian, 101 F.3d at 470. Here Przybylowski never even uses the word "unconstitutional," much less cites to any particular constitutional amendment, and none of his cases raise federal constitutional claims.
In Verdin itself, the Seventh Circuit found that an alleged jury instruction error raising due process concerns had not been sufficiently presented to the state courts as a federal constitutional claim to be cognizable on federal habeas review. See Verdin, 972 F.2d at 1476. The court specifically warned that with respect to due process claims,
the contours of the possible constitutional claims are, of course, particularly indistinct, and the overlap of state and federal jurisprudence particularly striking. Here, there is a special danger that a claim in state court "may well present the echo of a federal claim," [citation omitted] while still not alerting the state court to the federal nature of the claim.Id. at 1475. In Bocian, a subsequent case using the Verdin framework, the Seventh Circuit held that a petitioner failed to fairly present his void-for-vagueness claim in state court because he did not "sketch out an argument explaining why the conviction violates the Due Process Clause." See Bocian, 101 F.3d at 469-70. The court reached its conclusion even though the petitioner had referred to the Fourteenth Amendment specifically and had cited a Supreme Court case, Furman v. Georgia, 408 U.S. 238 (1972), saying that imposition of the death penalty constituted cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. See id.
Applying the Verdin test, the court finds that Przybylowski failed to fairly present to the state courts any of the claims he makes in Ground 2. First, Przybylowski relied on no federal cases whatsoever in state court, much less ones employing constitutional analysis. Second, he relied on no state cases applying constitutional analysis to a similar fact situation. Third, he failed to assert deprivation of a fair trial in terms which would to call to mind Sixth and Fourteenth Amendment violations. "Fair trial," as discussed below, is also a common state law claim, and Przybylowski relied solely on state law cases using state law analysis in his state court appeals. Even today he cites no cases employing federal constitutional analysis. Finally, the fact patterns he outlined in state court are not so obviously within the mainstream of constitutional litigation as to meet the fourth Verdin criterion.
The contours of a fair trial claim are, like those of a due process claim, "particularly indistinct," with substantial possibility of state and federal jurisprudential overlap. As in Verdin, references to "fair trial" present a special danger that the state court may not be alerted to the federal nature of the claim, even if such a claim is inherent in the facts before it. Indeed, the First Circuit has rejected a fair trial claim. See Dougan v. Ramsay, 727 F.2d 192, 201 (1st Cir. 1984); see also Daye v. Attorney General of State of New York, 696 F.2d 186, 193 (2d Cir. 1982). Here Przybylowski similarly made only vague and cursory references to his right to a "fair trial," failing to cite any federal constitutional provisions or even state cases relying on such provisions. The appellate court not surprisingly addressed all of his claims on state law grounds, citing only state law principles and cases that themselves included no reference to federal law. Although, as Bocian has noted, citing only Illinois cases will not itself defeat a finding of fair presentment, see Bocian, 101 F.3d at 470, the appellate court's analysis and disposition of the claims support this court's conclusion that the state court was not alerted to the federal quality of the claim.
Moreover, the court finds that Przybylowski's state court presentation falls short of the Supreme Court's standard in Anderson and Picard. In Picard, the Supreme Court refused to consider the petitioner's contention that the method by which he was brought to trial denied him equal protection under the Fourteenth Amendment because he had failed to raise this challenge previously. Prior to his appeal to the Supreme Court, the petitioner had instead challenged his indictment in state court on the grounds that he was improperly indicted under state law and that the indictment procedure could not be approved without reference to whether the Fifth Amendment grand jury requirement applied to the states. He adverted to the Fourteenth Amendment solely as it bore upon that submission. Picard, 404 U.S. at 276-77. In Anderson, the Supreme Court used the fair presentment analysis to reverse the Sixth Circuit's holding granting habeas relief based on a denial of due process attributable to certain mandatory presumptions that undermined the prosecution's burden to prove guilt beyond a reasonable doubt. See Anderson, 459 U.S. at 7. The Court found that the petitioner had not fairly presented this due process claim to the state courts even though he had argued that the jury instruction in dispute (on malice) was "reversible error," had presented all the facts necessary to sustain a due process challenge, had cited a state court case in which the defendant had argued that failure to properly instruct a jury violates the Sixth and Fourteenth Amendments. See Id. at 6. The Court concluded that the petitioner had not presented to the Michigan courts the specific constitutional due process argument used by the Sixth Circuit. See Id. at 7. The Court also found the petitioner's reliance on the state case insufficient because the constitutional claim therein presented was not the same as the one asserted before the Sixth Circuit.
Unlike the petitioners in Picard and Anderson, Przybylowski did not make any reference to federal constitutional provisions or principles in the state court proceedings. Przybylowski did not cite a single state case that was either based on or even referred to federal law.
Indeed, Przybylowski's state court presentation of his Ground 1 Confrontation Clause claim starkly contrasts with his presentation of his Ground 2 claims. Przybylowski repeatedly referred to his "right of confrontation" under the Sixth and Fourteenth Amendments in his state court briefs. He began his appellate court brief by arguing that he "was denied a Constitutionally fair trial because he was not permitted to confront the witnesses against him" and then specifically cited three Supreme Court cases, including Cruz v. New York, 481 U.S. 186 (1987) Lee v. Illinois, 476 U.S. 530 (1986), and Bruton v. U.S., 391 U.S. 123 (1968). Petitioner's Illinois Appellate Court Brief at 18, 25. In his petition for leave to appeal to the Illinois Supreme Court, Przybylowski also pointed directly to Crane v. Kentucky, 476 U.S. 683 (1986), arguing that "the right to confront witnesses in a case very similar to the petitioners [sic] was also mandated by the United States Supreme Court in the case of Crane. . . ." Petitioner's Petition for Leave to Appeal at 7.
Przybylowski's discussion of his assorted Ground 2 claims, however, simply states that he was "denied a fair trial by the conduct of the trial court," that he was "plagued with prejudicial evidence," and that the trial court's conduct could only have caused the jury to believe that the judge found the State's case more credible than Przybylowski's. Petitioner's Illinois Appellate Court Brief at 26, 30. The cases he cited were state law cases, relying on state law claims and analyses. Przybylowski then reiterated the same arguments in his Petition for Leave to Appeal, adding nothing that would point to the federal nature of his claims even though he did specifically add discussion of another Supreme Court case to his Confrontation Clause claim. The disparity between Przybylowski's presentation of his Confrontation Clause and assorted Ground 2 claims could not be greater.
This court's conclusion is further buttressed by Przybylowski's failure to cite any case either in his petition or his reply. Section 2254 makes it clear that when a state court addresses a claim on the merits, its decision will not be overturned unless it was contrary to or involved an unreasonable application of clearly established Supreme Court precedent. 28 U.S.C. § 2254. The Seventh Circuit has made clear that a habeas petitioner has the burden of pointing to applicable Supreme Court precedent to sustain his or her claim. See Bocian v. Godinez, 101 F.3d 465, 471 (7th Cir. 1996) (quoting Lindh, 96 F.3d at 869, for the proposition that a petitioner "must be able to point to an authoritative decision of the Supreme Court in order to secure a writ"). It is clear that Przybylowski has failed to meet this burden.
The appellate court addressed the merits of three of the four claims Przybylowski alludes to in Ground 2: admissibility of the gang evidence and evidence of other crimes; the propriety of questioning Thome; and the propriety of reprimanding defense counsel and apologizing to Thome. Przybylowski has failed to cite any case law whatsoever in his petition or reply, much less controlling Supreme Court precedent regarding any of the claims raised in Ground 2. He did not cite any Supreme Court cases or even any cases referring to controlling Supreme Court precedent in state court either. Consequently, the court finds that each of the claims in Ground 2 is procedurally defaulted and warrants dismissal.
It relied on a procedural ground — waiver — in disposing of the fourth claim: the propriety of questioning Przybylowski himself, reviewing the merits only insofar as necessary to find that the trial court committed no plain error.
IV. CONCLUSION
After carefully reviewing the parties' submissions, the court concludes that Przybylowski's petition for a writ of habeas corpus must be denied.