Opinion
No. 97 C 3160
August 3, 2000
MEMORANDUM OPINION AND ORDER
Michael Louis Boone ("Boone") petitions this court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Boone names Warden Thomas Page as respondent. Respondent informed the court in its answer that Boone is currently housed at the Hill Correctional Center and the warden there is Mark A. Pierson, Therefore, pursuant to Rule 2(a) of the Rules governing § 2254 cases, Warden Pierson is substituted as the respondent. Boone alleges various constitutional and trial errors entitle him to habeas relief. Respondent contends the petition should be dismissed because Boone has procedurally defaulted the majority of his claims and the remaining claims fail on the merits.
BACKGROUND
The factual findings of a state trial or appellate court are presumed true in a federal habeas proceeding unless the petitioner rebuts the presumption with clear and convincing evidence. 28 U.S.C. § 2254(e)(1). As there is no evidence before the court to rebut this presumption, the court adopts the Illinois appellate court's statement of facts.
On November 8, 1985, Boone was convicted of deviate sexual assault, aggravated kidnaping, and aggravated battery in the Circuit Court of Cook County, Illinois. He was sentenced to an aggregate term of 65 years. The Illinois Appellate Court affirmed Boone's conviction on May 5, 1988. Answer, Ex. A. The Illinois Supreme Court denied Boone's petition for leave to appeal on December 8, 1988. Id., Ex. C. Boone filed a petition for post-conviction relief in state court. The petition was dismissed on August 8, 1996, and Boone appealed the dismissal of his post-conviction petition to the appellate court. That appeal was denied on October 28, 1999. Answer, Ex. E. Boone filed a petition for leave to appeal, Id., Ex. F, and a petition for leave to appeal as a matter of right, Id., Ex. H, with the Supreme Court of Illinois. Both petitions were denied on April 5, 2000. Id., Ex. G, I.
Boone originally filed his habeas petition before this court on September 16, 1997. The court dismissed the petition without prejudice pending resolution of his state court post-conviction proceedings. On May 18, 2000, Boone filed his renewed petition for a writ of habeas corpus in this court. Boone requests relief on the following grounds:
(1) Violation of his 5th and 14th Amendment rights when the trial judge:
(a) took a position on his guilt and sentencing after the prosecution's second witness and sua sponte ordered a bond hearing in the course of the trial, revoked his bond and took him into custody;
(b) allowed the prosecution to cross examine him about the fact that he was taken into custody;
(c) acted upon prejudice in rendering sentence; and
(d) committed several other errors, including not allowing the testimony of a social worker on behalf of Boone;
(2) Violation of his 5th and 14th Amendment rights to due process because the prosecution engaged in improprieties which prevented Boone from receiving a fair trial;
(3) Violation of his 5th and 14th Amendment rights to due process because the investigations by the Chicago Police Department and the prosecution were unfair and biased;
(4) Violation of his 6th and 14th Amendment rights to effective assistance of counsel because his trial counsel made numerous errors and omissions during trial that effected the outcome;
(5) Violation of his 5th and 14th Amendment rights to due process by the cumulative effect of erroneous acts and omissions of the trial judge, the prosecution and defense counsel;
(6) Violation of his 5th and 14th Amendment right to due process by the Appellate Court when it affirmed the judgment and sentence of the trial court;
(7) Violation of his 6th and 14th Amendment rights to effective assistance of counsel on appeal by the appellate counsel's erroneous acts and omissions;
(8) Violation of his 5th and 14th Amendment rights to due process because the proceedings on his post-conviction petition were substantially unfair because the court erroneously dismissed the petition without an evidentiary hearing and Boone's post-conviction counsel failed to comply with Supreme Court Rule 651(c); and
(9) Violation of his 5th and 14th Amendment rights to due process as a result of the actions of the Appellate Court.
DISCUSSION
I. BOONE HAS DEFAULTED CLAIMS DUE TO A FAILURE TO MEET THE PROCEDURAL REQUIREMENTS OF HABEAS CORPUSBoone must clear two procedural hurdles before the court may reach the merits of his habeas corpus petition: (1) exhaustion of remedies; and (2) procedural default. Rodriguez v. Peters, 63 F.3d 546, 555 (7th Cir. 1995) (citations omitted).
A. Boone has exhausted his state remedies
A habeas corpus petitioner exhausts all state remedies when: (1) he presents his claims to the highest state court for a ruling on the merits; or (2) no state remedies remain available to the petitioner at the time his federal habeas petition is filed. Farrell v. Lane, 939 F.2d 409, 410 (7th Cir. 1991) (citations omitted). Boone has presented his claims to the Supreme Court of Illinois and no longer has any available remedies within the Illinois state court system. Therefore, Boone has satisfied the exhaustion requirement.
B. Boone has procedurally defaulted the majority of his claims
Procedural default may occur in one of two ways. First, the petitioner may fail to properly raise an issue on direct appeal or post-conviction review in state court. Rodriguez, 63. F.2d at 555. Alternatively, if a state court relies on a procedural bar as an independent and adequate ground for its disposition of the case, it has been procedurally defaulted. Caldwell v. Mississippi, 472 U.S. 320, 327 (1985).
The majority of Boone's claims are procedurally defaulted because they were not properly presented to the state court on direct appeal or post-conviction review. Boone did not properly present to the state courts his claims of: (2) prosecutorial impropriety; (5) errors by the trial judge, prosecution, and defense counsel; and (7) ineffective assistance of appellate counsel. These claims were made for the first time in Boone's petition for post-conviction relief, yet were not made in his appeal of that same petition. Answer, Ex. D. By not raising these claims on appeal, Boone has procedurally defaulted these claims.
Boone is also procedurally barred from bringing his claims for: (3) police and prosecution investigation defects and bias; and (9) errors of the appellate court denying him due process. These claims were never made in state court and cannot be made for the first time in this court.
Last, Boone has procedurally defaulted his claim (8) of substantially unfair proceedings on his post-conviction petition. This claim was raised for the first time in Boone's petition for leave to appeal as a matter of right. People v. Boone, 188 Ill.2d 568 (Ill. 2000) (Docket No. 88949). Raising a claim for the first time in a discretionary appeal does not provide a "fair presentation" of a claim for the purposes of exhausting state court remedies. Castille v. Peoples, 489 U.S. 346, 351 (1989). Because Boone first raised this claim in a discretionary appeal, the claim has not been adequately presented to the state court and therefore cannot now be heard in this court.
If a petitioner has procedurally defaulted a claim, the court cannot reach the merits of that claim unless the petitioner demonstrates cause and actual prejudice. Wainwright v. Sykes, 433 U.S. 72, 87 (1977). Cause sufficient to excuse procedural default has been defined as "some objective factor external to the defense" that precluded the petitioner from pursuing his claim in state court. Murray v. Carrier, 477 U.S. 478, 488 (1986). A petitioner may show prejudice by demonstrating there is a reasonable probability the claimed constitutional violation adversely affected the outcome of the trial or appeal. Strickland v. Washington, 466 U.S. 668, 695 (1984).
Boone has made no allegations of cause and actual prejudice that would be sufficient to excuse procedural default of his claims. He offers no explanation why these claims were not presented on direct appeal or in his post-conviction petition.
As an alternative to demonstrating cause and prejudice, a petitioner may show that failure to consider the claim will result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 750. A fundamental miscarriage of justice may be established by demonstrating that it is more likely than not that no reasonable juror would have convicted the petitioner in the absence of the alleged defect in the state court proceedings. Shlup v. Delo, 513 U.S. 298 (1995).
Boone has failed to show that any fundamental miscarriage of justice occurred or that a constitutional violation probably resulted in the conviction of a person who is actually innocent of the crimes charged.
Accordingly, this court dismisses claims (2), (3), (5), (7), (8) and (9) of Boone's petition for habeas corpus on the grounds that they have been procedurally defaulted.
II THE REMAINDER OF BOONE'S CLAIMS FAIL TO JUSTIFY RELIEF ON HABEAS CORPUS
The standard of review applicable to habeas corpus petitions is found in 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Under this section, Boone must show either that: (1) the state court's decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court;" 28 U.S.C. § 2254(d)(1); or (2) the state court's decision 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)(2). Boone's claims for habeas relief fail to meet this standard of review, and thus must be denied.
A. Boone's alleged errors by the trial judge do not justify habeas relief
Boone's first claim asserts a violation of his 5th and 14th Amendment rights as a result of the trial judge:
(a) taking a position on his guilt and sentencing after the prosecution's second witness and sua sponte ordering a bond hearing in the course of the trial, revoking his bond and placing him into custody;
(b) allowing the prosecution to cross-examine him about the fact that he was taken into custody;
(a) acting with prejudice in rendering a sentence;
(d) committing several other errors, including not allowing the testimony of a defense witness offered to impeach the testimony of the victim.
These claims were properly raised on direct appeal. Accordingly, the court reviews the claims on the merits.
1. Prejudice on the part of the trial judge
Boone's claims that the trial judge prejudged him and improperly revoked bond during trial and that the trial judge sentenced him prejudicially are virtually the same claim and will be considered together. Boone claims the trial judge prejudged the strength of the state's evidence against him and determined the length of his sentence without considering all of the evidence. As proof of prejudice, Boone directs the court's attention to the sua sponte bond revocation hearing conducted by the court after the second day of trial. See Trial Transcript at 362. Boone claims the court's revocation of his bond showed prejudice against him and that it continued throughout the trial and aggravated his sentence.
The appellate court concluded that these allegations were unsupported by the record. Answer, Ex. A, p. 6. The appellate court cited the trial judge's statement that he was not prejudging the defendant's guilt, but rather he was providing reasons for revoking bond. Id., see Trial Transcript at 362. The remarks made by the trial judge demonstrate an appropriate consideration of the factors attendant to a bond revocation hearing. See People v. Saunders, 122 Ill. App.3d 922, 928 (Ill.App.Ct. 1984). The trial judge's reasoning for revoking bond does not support Boone's assertion of prejudice or pre-judgment.
2. Improper consideration of factors during sentencing
Boone alleges his extended term sentence was improper. He argues the extended term sentence he received for deviate sexual assault was based upon facts surrounding his aggravated battery conviction, and not those of the deviate sexual assault.
The appellate court found no error in the sentence of the trial court. Answer, Ex. A, p. 8. When considering an extended sentence, a judge should not "narrowly define and distinctly separate the various offenses that arose out of the defendant's conduct," People v. Smallwood, 102 Ill.2d 190, 194 (Ill. 1984), and may "look to the defendant's conduct throughout the criminal transaction." People v. Washington, 127 Ill. App.3d 365, 388 (1984).
The trial court was well within its broad discretion when it considered the totality of Boone's acts in imposing an extended term, and this determination is given deference in habeas corpus proceedings challenging state criminal sentences. United States v. Allen, 596 F.2d 227, 231 (7th Cir. 1979). Boone has failed to show that his sentence violated any federal constitutional right.
3. Cross-examination about arrest
Boone claims the prosecution was improperly permitted to cross-examine him regarding his involuntary admission to a psychiatric hospital the night before he testified. During the prosecution's case-in-chief, the trial judge, who had not originally set Boone's bond, held a bond hearing. Trial Transcript at 362. At the conclusion of that hearing, the court decided to revoke Boone's bond and have him taken into custody.Id. at 367. Boone's counsel requested that he be taken into custody at a psychiatric hospital. Id., at 367. The court granted this request. Id. at 368.
Following Boone's direct examination, the prosecutor questioned Boone in a manner that he alleges allowed the jury to infer that his bond had been revoked by the trial judge the preceding day. See id. at 460-63. Following this testimony, the trial judge gave the jury a cautionary instruction to disregard any references to the revocation of Boone's bond. Id. at 461 ("I want to caution the jury at this time that it doesn't make any difference, ladies and gentlemen, as far as the trial of guilt or innocence or insanity or anything else whether someone who is being tried is out on bond or whether they are in custody").
The appellate court held Boone's cross-examination was not prejudicial. Answer, Ex. A, p. 6. The cautionary instruction was held to be sufficient to cure any prejudice that may have resulted from the state's cross-examination. Id. (citing People v. Simpson, 129 Ill. App.3d 822, 835 (Ill.App.Ct. 1984)).
It is important to remember that a writ of habeas corpus is not to be granted upon the showing of a minor constitutional defect. The finding of a federal constitutional error does not require automatic reversal of a conviction if the error was harmless. Burns v. Clusen, 798 F.2d 931, 943 (7th Cir. 1986) (citing Chapman v. California, 386 U.S. 18 (1966)). Rather, "a constitutional error is grounds for relief in a federal habeas proceeding only if the error `had [a] substantial and injurious effect or influence in determining the jury's verdict.'" Jones v. Page, 76 F.3d 831, 855 (7th Cir. 1996) (citing Brecht v. Abrahamson, 507 U.S. 619, 638 (1993)). This analysis applies to all Boone's claims based on alleged trial errors, i.e., errors that "occur during the presentation of the case." See Arizona v. Fulminante, 499 U.S. 279, 307-08 (1991).
While a prosecution comment about bond revocation is ill-advised, the comment here does not justify granting habeas relief. "Evidentiary questions are only subject to review by a federal court in habeas corpus proceedings if they constitute a denial of fundamental fairness." United States ex rel. Rooney v. Housewright, 568 F.2d 516, 523 (7th Cir. 1977). The prosecutor's comments did not constitute a denial of fundamental fairness, particularly given the curative instruction immediately given to the jury by the trial court.
4. Refusal to allow defense witness to testify
Boone claims he was prejudiced by the trial court's refusal to allow one of his witnesses to testify. Boone wished to call a social worker to whom the victim had spoken following the incident. He asserts the testimony would impeach the victim's trial testimony and bolster the defense's claim that the victim had agreed to commit an act of prostitution with Boone. Answer, Ex. A at 4. The trial court refused to allow the social worker to testify. Boone claims his defense was prejudiced as a result. The appellate court found no resulting prejudice.Id. at 4. The court reasoned that a minor discrepancy in the victim's testimony would not have affected the jury's verdict. Id.
Because Boone again complains of an evidentiary error, he must establish that the trial court's decision not to allow the social worker to testify constituted fundamental unfairness. Rooney, 568 F.2d at 523. Boone's proffer that the social worker's report of the conversation noted the victim had said she was borrowing "money to pay for rent when attacked." Answer, Ex. A at 3. At trial, the victim stated she was returning from a nearby grocery store when the crimes occurred. Trial Transcript at 277. Boone asserts that allowing the social worker's testimony would have impeached the victim's testimony, called into question the victim's credibility, and lent credence to Boone's theory that the victim had agreed to commit an act of prostitution.
The social worker's proffered testimony does not support the strong impeachment inference that Boone suggests. Further, Boone has a greater burden than this. He must prove that exclusion of this testimony had a substantial and injurious effect on the jury's verdict. See Jones, 76 F.3d at 855. Boone has not alleged prejudice, let alone proven it. When weighed against the substantial evidence of his guilt, Boone has failed to show that exclusion of this witness likely affected the jury's verdict. This argument lacks merit.
B. Boone's right to effective counsel was not violated
Boone claims that he had ineffective assistance of trial counsel, in violation of his 6th and 14th Amendment rights. Boone alleges numerous errors during trial by his attorney, Steven Sosman. The only claims that have been properly presented to the state court and preserved for purposes of this petition are: (a) whether Sosman committed error by examining Boone concerning his psychiatric commitment the night before he was to testify, thus opening the door for cross-examination by the prosecution; and (b) whether Sosman failed to inform Boone that, if convicted, he was eligible for an extended-term sentence of sixty-five years. Boone's claim concerning the error in direct examination was raised on direct appeal. This ineffective assistance claim was rejected by the appellate court. Answer, Ex. A at 5. Boone's claim concerning Sosman's failure to inform him of the maximum possible sentence was raised at the post-conviction stage and was also rejected by the appellate court. Id. at 8.
To establish ineffective assistance of counsel, Boone must show: (a) "counsel's representation fell below an objective standard of reasonableness"; and (2) "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 687 (1984). Ineffective assistance of counsel is a mixed question of law and fact reviewable under § 2254(d)(1) of the AEDPA. Porter v. Gramley, 112 F.3d 1308, 1313 (7th Cir. 1997). Under this standard of review, a federal court will only disturb a state court's unreasonable application of Strickland. "This means that only a clear error in applyingStrickland's standard would support a writ of habeas corpus." Holman v. Gilmore, 126 F.3d 876, 882 (7th Cir. 1997). Moreover, there is a strong presumption Boone's counsel provided reasonable professional assistance.Kubat v. Thieret, 867 F.2d 351, 359 (7th Cir. 1989).
1. Alleged error in inquiring on direct examination regarding psychiatric commitment
Boone claims prejudice to his defense by the eliciting of testimony by his own counsel regarding his commitment to a psychiatric hospital the previous night. This testimony, Boone claims, opened the door to extensive cross-examination by the prosecution about this event.
The appellate court found no prejudice to Boone. Answer, Ex. A at 5. It found that this line of questioning could well be a trial strategy by Sosman to show that Boone suffered from a mental disability causing him to be legally insane at the time the crimes were committed. Id. at 5.
Counsel's effectiveness is determined by the totality of his conduct, and a reviewing court will not inquire into areas involving the exercise of judgment, discretion, trial tactics, or strategy. People v. Edwards, 301 Ill. App.3d 966, 994 (Ill.App.Ct. 1998) (holding that counsel's decision to open the door to evidence of other crimes was not ineffective assistance). Boone's claim that Sosman's strategy opened the door for cross-examination on this subject is not sufficient to disturb the considerable deference this court is required to afford both an attorney's choices in constructing a defense and the Illinois court's application of the Strickland standard. See Holman, 126 F.3d at 881 ("Strickland builds in an element of deference to counsel's choices in conducting the litigation; § 2254(d)(1) adds a layer of respect for a state court's application of the legal standard").
On this record, Boone has not established that Sosman's representation fails to meet the Strickland standard. The appellate court's rejection of the ineffective assistance of counsel claim was not an unreasonable application of Strickland. Accordingly, this claim lacks merit.
2. Trial counsel's alleged failure to inform Boone of the maximum sentence
Boone claims Sosman failed to inform him of the maximum sentence he could receive if he was found guilty at trial. He claims had he known he could receive a sentence of sixty-five years, he would have accepted the state's plea agreement offering six years.
Boone originally filed this claim in his first post-conviction petition. Answer, Ex. D. The appellate court rejected the claim. The appellate court noted that in a letter attached to the petition, Sosman stated "the entire matter [a lengthy sentence] could have been avoided at the outset of the case" because Sosman "had worked out an agreement with the State to have [Boone] sentenced to 6 years." Id., Ex. E at 4. Boone "refused the offer, and chose to go to trial and plead insanity." Id. Sosman further stated that "he never told [Boone] that the extreme sentence imposed against him was something that could not be done." Id. No other documents or affidavits were attached to Boone's petition. Id.
Boone appealed the appellate court's decision. He filed two motions that were heard with this appeal. Attached to the second motion were four affidavits, two signed by Boone and two signed by his brother, Theodore Boone. Boone states in his affidavit that he would have accepted the state's offer of six years had Sosman informed him of the possibility of a sixty-five year sentence. Theodore Boone's affidavit stated Sosman informed Boone the "worst" sentence he could receive was thirty years. Both affiants stated post-conviction counsel refused to attach these affidavits at the initial post-conviction petition, and told them she could call them as witnesses at an evidentiary hearing.
The appellate court applied Strickland to Boone's claim. Id. at 7. The court found that there were no affidavits attached to the post-conviction petition. In fact, the only relevant statements in the petition were those by Sosman that he had informed Boone of the potential severity of his sentence. The appellate court held that Boone's claim was without merit.
The appellate court reasonably applied the Strickland standard and Boone's claim of ineffective assistance of counsel lacks merit.
C. Boone's claim that the Illinois Appellate Court violated his due process rights is without merit.
Boone claims that the appellate court denied his 5th and 14th Amendment right to due process by affirming all decisions by the trial court. This vague and conclusory claim is frivolous on its face.
CONCLUSION
For the foregoing reasons, Michael Louis Boone's petition for a writ of habeas corpus is denied.