Opinion
01 C 7594
January 23, 2002
MEMORANDUM OPINION
This matter comes before the court on the petition of Christopher Allen for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons set forth below, the petition is denied.
BACKGROUND
Petitioner Christopher Allen ("Allen") was charged with one count of first degree murder and two counts of attempted first degree murder for his involvement in a gang-related shooting in 1993. At his trial, the prosecution tendered John Nee, a Chicago police officer who testified as an expert on the activities of the Four Corner Hustlers, the gang to which Allen belonged. Nee had monitored the Hustlers for 18 years and assembled information regarding the gang from persons in the community where the Hustlers operated, informants, and contacts within the gang itself In his testimony, Nee identified Allen as the "enforcer" for the Hustlers, although Nee could not specifically recall how he obtained this information. The jury convicted Allen on all three counts, and he received a sentence of 90 years' imprisonment.
Allen appealed his conviction and sentence, contesting the propriety of Nee's testimony, the credibility of certain lay witnesses, and the length of his sentence. The appellate court affirmed the conviction, and Allen sought leave to appeal to the Illinois Supreme Court. He focused only on the propriety of Officer Nee's testimony, abandoning the other two grounds he had earlier advanced. The Supreme Court affirmed the lower courts without opinion. Allen then filed the instant petition in this court. The petition takes issue with Nee's testimony and attempts to resurrect the two grounds that were left out of Allen's brief to the state supreme court.
DISCUSSION
Before seeking relief from a federal court under a petition for habeas corpus, state prisoners must exhaust remedies available within the state courts. 28 U.S.C. § 2254(b)(1)(A). This requirement means that a prisoner can base a habeas petition only on issues that are first fairly presented to each level of the courts of the state. O'Sullivan v. Boerckel, 526 U.S. 838, 848(1999). As stated earlier, two of the grounds cited in Allen's habeas petition were raised in the state appellate court but were not presented to the Illinois Supreme Court in his petition for leave to appeal. The omission results in procedural default of these grounds and Allen may not pursue them again in this court. See id.
The sole issue that Allen presented to the Illinois Supreme Court revolved around the testimony of Officer Nee. Specifically, Allen argued that the trial court should not have concluded that Nee's methodology was sufficient to give him specific expertise of the topics on which he testified and that the information Nee gave to the jury was so prejudicial that it should have been excluded under the standard enumerated for gang experts in People v. Jackson, 145 Ill. App.3d 626, 633(1986). Allen cited some federal case law addressing expert testimony, but the thrust of his argument was that the trial judge's decision to allow Nee to testify' as an expert witness was improper. The instant petition claims that the trial judge's decision to allow Nee's testimony resulted not only in the prejudice that Jackson disallows but also denied Allen due process of law. Although it is questionable whether Allen has adequately described a deprivation of due process with regard to Nee's testimony, we are also precluded by procedural default from addressing the merits of that aspect of the petition. Although Allen pursued the propriety of Nee's testimony at all levels of the state courts, mere presentation of the issue is not enough for habeas exhaustion purposes. A party must "fairly" present the issue; in other words, the state court must be alerted to the constitutional dimensions of an issue before they can be said to have had a fair opportunity to consider it. Duncan v. Henry, 513 U.S. 364, 365-66(1995). Allen's argument to the Supreme Court did not include a due process element but instead rested solely on state evidentiary principles. A prisoner framing an evidentiary ruling as a denial of due process must do so in both federal and state court proceedings to avoid the effects of procedural default. Id.; see also Hough v. Anderson, 272 F.3d 878, 892 (7th Cir. 2001). Because Allen did not couch his opposition to Officer Nee's methodology in constitutional terms at the state level, we are precluded from entertaining his arguments to that effect in this court.
CONCLUSION
For the foregoing reasons, the petition for habeas corpus is denied.