Opinion
99 C 8168
June 21, 2000
MEMORANDUM OPINION
Before the Court is the habeas corpus petition of Petitioner Robert L. Frye. For the reasons set forth below, we deny Frye's petition.
BACKGROUND
This case poses the question inter alia of whether a jury may properly be shown a picture of a bloody and wounded dog, whose wounds were allegedly caused by the defendant during the perpetration of the crimes charged against him. Petitioner Robert L. Frye ("Frye"), a prisoner in the Henry Hill Correctional Center in Galesburg, Illinois, submits this question in support of obtaining a writ of habeas corpus from this Court, naming Mark A. Pierson, the warden of Henry Hill Correction Center ("Respondent") as the respondent.
In its order of June 30, 1999, denying Frye's appeal, the Illinois Appellate Court summarized the facts underlying his conviction and sentencing. We are compelled to utilize that rendition as the basis for our review, and these facts are presumed correct for purposes of this Court's review. See Sumner v. Mata, 449 U.S. 539, 545-46 (1981); Smith v. Fairman, 862 F.2d 630, 632 (7th Cir. 1988). Therefore, we set forth and adopt the Illinois Appellate Court's factual account of the case.
The events at issue occurred on November 7, 1997, at approximately 1:30 a.m., when Linda Drozdek, an off-duty Chicago Police Detective, observed light emanating from her garage and noticed that the door was open. Drozdek informed her husband, Michael Drozdek, a Chicago Police Lieutenant, that someone may be in the garage. The Drozdeks' daughter called the police, while both Drozdeks investigated. Lt. Drozdek was carrying a firearm.
The Drozdeks encountered Frye near the garage, where Lt. Drozdek yelled that he was a police officer and that Frye was under arrest. Frye tried to run past them, but Lt. Drozdek put up his arm, resulting in a struggle. During the struggle, Frye lunged for the gun, which discharged, wounding the Drozdeks' dog. The bullet passed through Det. Drozdek's sweatshirt but did not penetrate her skin. Frye escaped on foot, but was apprehended by Lt. Drozdek less than a block from the Drozdek's residence. Several on-duty officers responded, finished the arrest and administered his Miranda rights. Police recovered a twelve-inch screwdriver from Frye.
Frye was charged with burglary, aggravated battery of a police officer, attempting to disarm a police officer, and possession of burglary tools. At the conclusion of a jury trial, Frye was found guilty of the charges and sentenced to nineteen years in prison (14 years for the burglary, and 5 years for the aggravated battery charge. The other charges were merged).
Frye appealed to the Appellate Court of Illinois, First Judicial District, arguing the following grounds for reversal: (1) the trial court abused its discretion when it prohibited defense counsel from asking potential jurors if they could be fair, knowing that Frye had shot his victim's dog; (2) because there was insufficient evidence Frye knew that one of his victim's was a police officer, the State failed to prove him guilty beyond a reasonable doubt of aggravated battery of a police officer and attempting to disarm a police officer; (3) the trial court erred by publishing a photograph of the bloody and wounded dog since there were no charges against Frye related to the dog; and (4) the State did not prove Frye guilty of possession of burglary tools because the evidence showed that he had stolen the tools from his victims during the break in. In a summary order dated June 30, 1999, the First District affirmed Frye's conviction and held that the trial court's findings of fact and conclusions of law were not in error.
Frye subsequently filed a petition with the Illinois Supreme Court for leave to appeal, raising for the first time the following claims: (1) the trial court abused its discretion and misled the jury by omitting the words "great bodily harm and disfigurement" when the judge read the aggravated battery charge to the jury; (2) the trial court abused its discretion when it disallowed Frye's use of exculpatory statements; (3) his Fourteenth Amendment right to due process of law was violated because his pre-sentence investigation report included erroneous information, and his transcript was missing two pages; and (4) Frye was subject to double jeopardy when his sentence included seven years for a burglary he committed and was sentenced for in 1992. On October 6, 1999, the Supreme Court denied Frye's appeal.
On January 13, 2000, Frye's petition for writ of habeas corpus was entered into the docket for the Northern District of Illinois. On March 20, 2000, Respondent filed its answer to Frye's petition.
LEGAL STANDARD
Frye's petition is governed by the amendments to 28 U.S.C. § 2254. Subsection (d) of Section 2254 governs the consideration of any claim adjudicated by a state court on its merits. See Lindh v. Murphy, 96 F.3d 856, 868-71 (7th Cir. 1996) (en banc), rev'd on other grounds, 521 U.S. 320, 117 S.Ct. 2059 (1997). Under Section 2254(d)(1), habeas relief may be awarded only if the state court's adjudication of the claim 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." 28 U.S.C. § 2254(d)(1). Under Subsection (d)(2), habeas relief is possible only if the state court adjudication "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented" in the state court. See id., (citing Section 2254(d)(2)). The "unreasonable application" exception of Section 2254(d)(1) applies to mixed questions of law and fact, and thus where the state court offers "a responsible, thoughtful answer" after "full opportunity to litigate" the question, a federal court on habeas review must accept that answer as "adequate to support the judgment." Lindh, 96 F.3d at 871.
A federal court cannot address the merits of constitutional claims brought in a petition for habeas corpus relief, however, unless the state courts have had a full and fair opportunity to review them. See United States ex rel. Simmons v. Gramley, 915 F.2d 1128, 1131-32 (7th Cir. 1990). As the Seventh Circuit explained in Henderson v. Thieret, 859 F.2d 492, 496 (7th Cir. 1988):
Before considering a petition for habeas corpus on its merits, a district court must make two inquiries — whether the petitioner exhausted all available state remedies and whether the petitioner raised all his claims during the course of the state proceedings. If the answer is "no," the petition is barred either for failure to exhaust state remedies or for procedural default.Id. To avoid procedural default, a federal habeas petitioner must show that he raised the claims contained in his habeas corpus petition during the state proceedings and that he afforded the highest state court an opportunity to address these claims. See Cawley v. DeTalla, 71 F.3d 691, 694 (7th Cir. 1995). In Illinois, a habeas petitioner is required to raise all arguments before the Illinois Supreme Court, even though the Court has discretionary control over its docket. See O'Sullivan v. Boerckel, 526 U.S. 838, 843, 848, 119 S.Ct. 1728 (1999). A federal court's review of a habeas claim is barred if the State in which the petitioner was convicted treats the failure to appeal as a procedural default barring further review. See id.
DISCUSSION
Respondent claims that several of the grounds for relief contained in Frye's petition should be denied for procedural default. We will address each argument separately as it relates to the relevant claims.
I. Procedurally Defaulted Claims
In his appeal to the Illinois Appellate Court, Frye argued that: (1) there was insufficient evidence at trial for a jury to find him guilty of possession of burglary tools; (2) by preventing him from asking potential jurors whether they would be prejudiced by the dog shooting, the trial court abused its discretion. However, in his petition to the Illinois Supreme Court for leave to appeal, he failed to argue these issues. Exhaustion principles require Frye to show that there was adequate cause for his failure to raise the claim before the Illinois Supreme Court, and that he has suffered actual prejudice from the Federal law violation.See Coleman v. Thompson, 501 U.S. 722, 731 (1991). Frye does not address his failure to present any omitted issues to both State courts (he does not argue adequate cause, nor prejudice), instead he argues that the appellate defender "did the appellate's [sic] appeal her way. The petitioner, put pro-se, his post conviction, every issue important." Regardless of any disagreement between Frye and his appellate counsel, our review of the record demonstrates that Frye did not present all the arguments contained in his habeas petition, including the burglary tools charge, and the voir dire issue relating to juror prejudice emanating from the canine photograph. Moreover, Frye has not raised an ineffective assistance of counsel claim, nor has he asserted this as grounds for cause and prejudice. Thus, these claims are barred by procedural default.
Along a similar vein, in his petition for leave to appeal to the Illinois Supreme Court Frye raised for the first time the issue of whether he was denied due process by the trial court denying his motion to admit his confession. As with the claim, discussed previously, Frye has failed to exhaust his State court remedies for this claim, and has failed to tender any arguments going towards prejudice or cause. Accordingly, his claim is barred by procedural default.
II. Properly Preserved Claims
Frye has two claims remaining in his habeas petition, both of which he presented to both the Illinois Appellate Court and the Illinois Supreme Court: (1) whether the trial court abused its discretion when it published to the jury the picture of the Drozdeks' injured dog; and (2) whether there was sufficient evidence for the jury to convict Frye of the charges of aggravated battery of a police officer and attempting to disarm a police officer. Respondent argues that we should deny Frye's petition for these counts, arguing that because Frye has not cited any case law in support of his claims, he has failed to meet the burden incumbent upon him as the habeas petitioner. We believe that there is no evidence indicating that the trial court, jury, and appellate court acted improperly. Consequently, we deny Frye's petition.
Frye's first claim is that by publishing the picture of the injured animal to the jury, the trial court abused its discretion. He claims that this was improper because he was not charged with harming the dog, and the photos improperly inflamed the jury without serving any legitimate purpose. He argues that although the Illinois Appellate Court previously adjudicated the issue (ruling that because they were not tendered the photograph, they were not in a position to judge its probative value), it was not his place to ensure that they received a copy of the photograph. Rather, he argues that because the State was in possession of the photograph, it was burdened with providing it to the court.
Frye's argument is without merit and is contrary to settled procedures. His claim that the State bore the burden of providing the photograph belies the reality that because he was found guilty at trial, he was the appellant. As such, Frye bore the burden of proof on appeal, not the State. Likewise, his claim that he could not tender the photograph to the State runs afoul of the modern requirement that the prosecution must have provided Frye with a copy of the photograph prior to his trial. Moreover, even if he was not provided a copy of the photograph, merely because the original may have been in possession of the State does not mean that he could not have obtained a copy. In addition, we see no inherent prejudice in publishing the photograph, nor any evidence that Frye suffered actual prejudice from the jury. Indeed, the jury appears to have fairly weighed the evidence before reaching its verdict. For all of these reasons, in conjunction with Frye's failure to tender any relevant case law or evidence in support of this claim, we deny his petition seeking habeas relief based upon the publication of the dog photograph.
Frye's remaining argument is that there was insufficient evidence to convict him of aggravated battery of, and attempting to disarm a police officer. The Illinois Appellate Court considered this argument, correctly noting that a defendant cannot properly be convicted of aggravated assault of a police officer when the defendant was unaware that he was an officer. However, as the appellate court noted, there was sufficient testimonial evidence demonstrating Frye was aware that Lt. Drozdek was a police officer. Both Lt. Drozdek and Det. Drozdek testified that he repeatedly identified himself to Frye as a police officer, Officer Pat Hackett, the Drozdek's next door neighbor, also confirms that Lieutenant Drozdek informed Frye that he was a police officer.
The jury heard and considered this evidence, and determined it was credible and that Frye was guilty beyond a reasonable doubt. The appellate court considered Frye's argument that because Drozdek was not in uniform, and did not display his badge, Frye could not have known that Drozdek was a police officer. We find no flaw in either determination. The jury was in the best position to determine whether the Drozdeks and Hackett were credible, or whether they were merely attempting to add an unwarranted charge upon Frye. Its verdict indicates that it believed the Drozdeks and Hackett, and the verdict was not contrary to clearly established Federal law, nor unreasonable under the factual circumstances. Similarly, the appellate court's application and analysis of Illinois law was appropriate, thoughtful and correct. The court properly distinguished People v. Bush, 281 N.E.2d 734 (1972) (conviction reversed where evidence showed that it was reasonable for defendant to question whether individual was a police officer), and applied People v. Barry, 286 N.E.2d 753 (1972) (plainclothes officer's testimony that he announced himself as a police officer prior to struggle with defendant was sufficient to support a jury verdict that defendant was guilty of assaulting an officer). In addition, Frye has not pointed to any specific errors committed by the appellate court, or any exculpatory evidence ignored by the jury. Accordingly, we believe that the evidence supports Frye's conviction and deny his habeas petition on these grounds.
CONCLUSION
For the reasons set forth above, Petitioner's petition for habeas relief is denied in its entirety.