Opinion
No. 97 C 2873
August 22, 2000
MEMORANDUM OPINION AND ORDER
State prisoner Tommy Morris has filed a petition for a writ of habeas corpus, alleging two grounds on which his conviction and sentence for armed robbery are constitutionally infirm. Because the court finds no error by the state courts that would warrant a grant of habeas under 28 U.S.C. § 2254, Morris's petition is denied.
Background
Stemming from the robbery of 72 year-old Anthony Sorrentino, petitioner Morris was convicted on June 10, 1992 of armed robbery after ajury trial and sentenced to a twenty-year imprisonment term. Evidence at trial suggested that Morris, accompanied by two others, accosted Sorrentino as he exited his car, pointed a pistol at him, announced the robbery, and took Sorrentino's car, car keys, and money. The defense argued that it was a case of mistaken identity, contending that Morris did not match the initial description of the assailant provided by Sorrentino to the police.
Morris appealed his conviction and sentence to the Illinois Appellate Court, raising two claims: (1) sufficiency of the evidence; and (2) that the jury was not instructed on what constitutes a dangerous weapon for purposes of an armed robbery conviction. While that appeal was pending, Morris sought post-conviction relief in the trial court, raising two claims of trial counsel ineffectiveness: (1) failure to move to quash Morris's arrest and to suppress evidence subsequently gathered; and (2) failure to investigate Morris's case by interviewing his codefendants. When post-conviction relief was denied, Morris appealed the denial to the Illinois Appellate Court, arguing that the trial judge violated Morris's due process rights by falling to conduct a hearing on his post-conviction petition. Before the appellate court, his appeal of the post-conviction petition's denial was consolidated with the still-pending direct appeal. The appellate court affirmed Morris's conviction and sentence.
Morris then sought leave to appeal to the Illinois Supreme Court, raising two claims. First, Morris argued that the appellate court applied an incorrect legal standard in ruling that he was not entitled to an evidentiary hearing on his post-conviction petition. His second claim was composed of three arguments: (1) the appellate court's judgment was contrary to controlling authority in light of the post-conviction petition's allegations; (2) the appellate court erred by rejecting Morris's claim of trial counsel ineffectiveness; and (3) the Illinois Supreme Court should address "the alarming trend" of appellate decisions rejecting ineffectiveness claims. The Illinois Supreme Court declined review.
Through his petition for a writ of habeas corpus, Morris has raised two claims before this court: (1) that the Illinois Appellate Court applied an incorrect legal standard in ruling that Morris was not entitled to an evidentiary hearing on his post-conviction petition; and (2) trial counsel ineffectiveness based on the failure to move to quash Morris's arrest and suppress the resulting evidence, and failure to investigate and present exonerating evidence in the form of testimony from Morris's co-defendants.
ANALYSIS
The Antiterrorism and Effective Death Penalty Act (AEDPA), Pub.L. 104-132, 110 Stat. 1218 (1996), applies to all habeas petitions filed after the Act's effective date — April 24, 1996. See Lindh v. Murphy, 521 U.S. 320, 336 (1997). Under 28 U.S.C. § 2254, as amended by the AEDPA, the court may not grant Morris's habeas 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, 526 U.S. 838, 842 (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 845 (internal brackets omitted).
To meet this "exhaustion" requirement, Morris "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 (7th Cir. 1999) (citing Verdin v. O'Leary, 972 F.2d 1467, 1472 (7th Cir. 1992)). Fair presentment requires Morris "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. If a state court refused to hear a federal claim because it was not properly presented, and the refusal was based on adequate and independent state grounds, then this court is barred from reviewing the claim. Hogan v. McBride, 74 F.3d 144, 146 (7th Cir.), modified, 79 F.3d 578 (7th Cir. 1996).
Even if Morris has properly raised the claims presented in his habeas petition before the state courts, it is not this court's proper function to conduct a de novo review of the claims. As long as the Illinois Appellate Court employed the proper constitutional framework in analyzing Morris's claims, 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. However, if a federal court, after carefully weighing the reasons underlying the state court's judgment, "is convinced that a prisoner's custody . . . violates the Constitution, that independent judgment should prevail." Williams v. Taylor, 120 S.Ct. 1495, 1511 (2000).
Claim One — Failure to Conduct a Hearing on Post-Conviction Petition
In affirming the trial court's denial of Morris's post-conviction petition, the appellate court observed that, under Illinois law, "the trial court's determination in a post-conviction proceeding will not be disturbed unless manifestly erroneous." (Resp.'s Exh. A at 18) Morris argues that "[u]nder the due process clause of the United States Constitution, a defendant who asserts that there has been a violation of his constitutional rights and demonstrates facts in support thereof in a collateral proceeding under a State statute and that hearing is denied, a reviewing court, as required by due process, cannot defer to the action of the trial court, but must make a de novo determination." (Habeas Pet. Mem. of Law at 1-2) As support, Morris cites two Supreme Court cases: Ornelas v. United States, 517 U.S. 690 (1996) and Thompson v. Keohane, 516 U.S. 99 (1995).
Neither of these cases are relevant to Morris's proposition because neither bear on the standard a state appellate court should apply in reviewing a state trial court's denial of postconviction relief. In Ornelas, the Supreme Court held that "as a general matter determinations of reasonable suspicion and probable cause should be reviewed de novo on appeal." Ornelas, 517 U.S. at 699. In Thompson, the Court held that "whether a suspect is `in custody,' and therefore entitled to Miranda warnings, presents a mixed question of law and fact qualifying for independent review" in habeas corpus proceedings. Thompson, 516 U.S. at 102.
The court notes that, subsequent to the filing of Morris's habeas petition, the Illinois Supreme Court held that where a trial court denies a post-conviction petition without an evidentiary hearing, that denial is subject to de novo review at the appellate level. People v. Coleman, 701 N.E.2d 1063, 1075 (Ill. 1998). Coleman does not advance Morris's cause on habeas for two reasons. First, the Coleman court limited the application of its holding to pending or future appeals. Id. Morris's appeal had already been resolved at the time Coleman was issued. Second, the Coleman court's holding was not based on the U.S. Constitution, nor did the court suggest that the previously governing standard of review violated principles of federal law in any way. Because Morris has identified no basis for concluding that the U.S. Constitution compels a state appellate court to conduct a de novo review of a post-conviction petition's denial, the court denies habeas relief as to Morris's first claim.
Claim Two — Ineffective Assistance of Trial Counsel
Although not raised by the state, the record reveals that this court is barred from reviewing Morris's ineffective assistance claim to the extent that it relates to the counsel's failure to move to quash Morris's arrest — because the Illinois Appellate Court rejected the claim based on an independent and adequate state ground. In reviewing the trial court's denial of Morris's post-conviction petition, the appellate court held that Morris had waived his ineffective assistance claim by not raising it on direct appeal:
[D]efendant asserts that the record on direct appeal did not contain all of the facts for raising trial counsel's failure to file a motion to suppress. However, the record on direct appeal contained a sufficient factual basis to enable appellate counsel to raise the issue, because the record on direct appeal contained Officer Callaghan's testimony regarding defendant's arrest. Post-conviction and appellate counsel Frederick Cohn (who characterizes trial counsel as a "bumbler") could have and should have raised this issue on direct appeal. He also could have and should have included the photographs of defendant and the lineup in the record on direct appeal. Mr. Cohn does not contend that he rendered ineffective assistance of appellate counsel. The issue consequently has been waived.
(Resp.'s Exh. A at 20) The waiver ruling was based on Illinois case law. ( Id.)
The fact that the appellate court went on to address — and reject — the merits of Morris's claim does not lift the procedural bar. The "adequate and independent state ground doctrine requires the federal court to honor a state holding that is a sufficient basis for the state court's judgment, even when the state court also relies on federal law." Harris v. Reed, 489 U.S. 255, 264 n. 10 (1989).
Given that Morris's claim is procedurally defaulted, this court may not review it unless Morris's habeas petition "shows cause for failure to raise [it] 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, 91 (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 requires Morris "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).
Morris does not allege cause for his claims default. As for the "fundamental miscarriage of justice" exception, Morris's defaulted claim, even assuming it to be true, does not suggest that an innocent defendant was convicted. Morris argues only that his trial counsel should have filed a motion to quash his arrest, which would then, he contends, have led to the suppression of Sorrentino's lineup identification of Morris. First, as the appellate court pointed out, there arguably was probable cause to arrest Morris. Morris was riding in a car that was stolen two days before. When the police officer asked Lamont Smith who owned the car, Smith had no response. After checking the license plates and learning that the car was stolen, the officer asked Morris who owned it, and Morris stated that Smith owned it. While it is possible that Smith lied to Morris about owning the car, and that Morris, therefore, was not lying to the police, Morris's attorney reasonably could have concluded, based on the circumstances of the arrest, that a motion to quash would have been futile.
More fundamentally, even if the motion would have succeeded, and the resulting lineup identification would have been suppressed, that does not suggest that Morris was innocent of the crime. The victim — who observed Morris close-up for some period of time — identified Morris in the lineup and in court. Even if the evidence could have been excluded through more aggressive lawyering, its admission does not give rise to a fundamental miscarriage of justice.
As for the trial counsel's failure to investigate Morris's co-defendants, Smith and Kenneth Elders, the appellate court ruled that it would not have been manifestly erroneous for the trial court to treat the alleged failure "as a matter of trial tactics and strategy which would not be subject to review." (Resp.'s Exh. A at 22) The appellate court reasoned that "[t]rial counsel may well have wished to preclude impeachment or even rebuttal by the State, particularly if Smith or Elders had a felonious background." ( Id.) Accordingly, the "alleged failure to investigate Smith and Elders did not operate to deprive defendant of effective assistance of counsel." ( Id.) This court agrees.
The Illinois Appellate Court analyzed Morris's ineffective assistance claims under the proper constitutional standard, citing Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, Morris must establish two components to prevail on an ineffective assistance claim:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.Id. at 687. Further, the Supreme Court has warned that "[j]udicial scrutiny of counsel's performance must be highly deferential," given that "it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable." Id. at 689.
Morris's ineffective assistance claim based on his counsel's failure to investigate fails both of the Strickland requirements. Under the first prong, his counsel's failure to interview Morris's co-defendants and present their testimony does not constitute ineffective assistance. In an affidavit submitted with Morris's post-conviction petition, Elders stated that at the time of the armed robbery, he "was with Lamont Smith and a man nicknamed `Petey' or `Petee' or `Petie,'" and that "Tommy Morris was not with me at the time of the occurrence." (Resp.'s Exh. H) Elders indicated that he pled guilty on April 7, 1992. Smith also submitted an affidavit stating that Morris was not present when the armed robbery occurred, but that "another person" was. ( Id.) Smith stated that he pled guilty to the crime, but did not indicate when he did so. Both Smith and Elders stated that they would have testified at Morris's trial if his counsel had asked them to do so.
As the Supreme Court has recognized:
[S]trategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. . . . a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.Strickland, 466 U.S. at 690-91.
While Smith's affidavit does not indicate the date on which he pled guilty, Elders pled guilty on April 7, 1992 — before Morris's trial began on April 27, 1992, and well before he signed his affidavit on March 7, 1994. It is not altogether surprising that someone who has already pled guilty to a crime might be willing to sign an affidavit admitting his guilt and insisting that his codefendant is innocent. Further, neither co-defendant identified the third assailant; Elders suggested that he was named "Petie," and Smith said nothing. Merely saying that their friend did not do it, without identifying who did do it, would not have lent much credibility to their testimony. Given that putting Elders or Smith on the stand would have subjected them to potentially crippling cross-examination by the state, Morris's counsel may have excluded that possibility from the outset as a matter of trial strategy. The fact that he did not interview them does not render his assistance constitutionally ineffective.
Morris's claim also fails Srickland's second prong in that Morris cannot show that he was prejudiced by his counsel's failure to present the testimony of his co-defendants. To establish prejudice, "[i]t is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding." Id. at 693. Rather, Morris "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. There is no reasonable basis for believing that testimony from Morris's friends — both of whom had already been convicted of the crime — would have negated Sorrentino's lineup and in-court identifications of Morris. There is no reasonable basis for believing that the testimony would have resulted in Morris's acquittal.
Conclusion
For these reasons, Morris's petition for a writ of habeas corpus is denied, and this action is dismissed.