Opinion
No. 97 C 2991
February 22, 2000
MEMORANDUM OPINION AND ORDER
State prisoner Charles Harris a.k.a. Jerry Hollins has filed a petition for a writ of habeas corpus, alleging four grounds on which his conviction and sentence for armed robbery are constitutionally infirm. The court finds that Hollins has procedurally defaulted as to all four grounds by failing to appeal them to the Illinois Supreme Court. Because the court's failure to review them does not create a fundamental miscarriage of justice, Hollins' petition is denied.
Background
On February 2, 1988, petitioner Hollins was convicted of armed robbery after a bench trial and sentenced to natural life imprisonment under the Illinois Habitual Criminal Act, 720 ILCS 5/33B-1. Hollins appealed his conviction and sentence to the Illinois Appellate Court, raising two claims: first, that his sentence constituted cruel and unusual punishment in violation of the Eighth Amendment; second, that the Habitual Criminal Act is unconstitutional because it does not allow for the consideration of mitigating factors, gives the prosecutor excessive discretion, and violates "ex post facto" and "double jeopardy" prohibitions. The Illinois Appellate Court affirmed Hollins' conviction and sentence. Hollins did not seek leave to appeal in the Illinois Supreme Court.
Hollins filed a petition for post-conviction relief in the state circuit court, raising three claims: first, that his conviction and sentence were unlawful and void due to multiple violations of his constitutional rights; second, that he was denied effective assistance of trial counsel; and third, that he was denied effective assistance of appellate counsel. On March 15, 1993, the circuit court dismissed Hollins' post-conviction petition.
Hollins filed a notice of appeal and the Office of the Public Defender was appointed to represent him. His public defender subsequently filed a motion to withdraw pursuant to Pennsylvania v. Finley, 481 U.S. 551 (1987), asserting that no appealable issues existed. The Illinois Appellate Court granted the motion to withdraw and affirmed the dismissal of Hollins' post-conviction petition. Hollins did not seek leave to appeal in the Illinois Supreme Court.
The Habeas Petition
In his April 24, 1997 petition for a writ of habeas corpus, Hollins raises four claims before this court:
Claim 1: Hollins alleges that his sentence is excessive.
Claim 2: Hollins alleges that he was denied effective assistance of counsel because: his counsel did not explain to him that he could receive a life sentence; his appellate counsel failed to raise "many issues"; and he should have received pre-trial counseling for his mental illness. (Habeas Pet. at 6)
Claim 3: Hollins alleges that the trial judge should have given him a jury trial after reading a statement from Hollins' co-defendant in court, and the judge should have granted a new trial since Hollins was "having problems with all of his public defenders." ( Id. at 7)
Claim 4: Hollins alleges that he was denied effective assistance of counsel because: his trial counsel failed to move for a substitution of judges after the trial judge read an inculpatory statement from Hollins' co-defendant in open court; his trial counsel failed to call Clarence Trotter as an alibi witness; and his appellate counsel failed to argue that Hollins was denied effective assistance of counsel and his right to conflict-free counsel where both Hollins and his co-defendant were represented (in separate trials) by different attorneys from the Office of the Public Defender.
Analysis
Under 28 U.S.C. § 2254, as amended by the AEDPA, the court may not grant Hollins' 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, 119 S.Ct. 1728, 1731 (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 1732 (internal brackets omitted).
To meet this "exhaustion" requirement, Hollins "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 (1999) (citing Verdin v. O'Leary, 972 F.2d 1467, 1472 (7th Cir. 1992)). Fair presentment requires Hollins "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.
To satisfy the exhaustion doctrine, a state prisoner "must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." O'Sullivan, 119 S.Ct. at 1732. This includes seeking discretionary review in the Illinois Supreme Court on both direct appeal, see id. at 1733, and post-conviction appeal. See White v. Godinez, 192 F.3d 607, 608 (7th Cir. 1999). Thus, even though his ineffective assistance of counsel claims arguably could not have been raised on direct appeal, Hollins still was required to pursue them through one full round of state post-conviction proceedings in order to give the state courts an opportunity to remedy the constitutional errors alleged. See Cruz v. Warden of Dwight Correctional Ctr., 907 F.2d 665, 670 (7th Cir. 1990) (noting that petitioner's claim could not have been raised on direct appeal, but requiring him to pursue state post-conviction remedies).
Because Hollins did not seek leave to appeal any of his claims in the Illinois Supreme Court — either on direct or post-conviction appeal — his claims are procedurally defaulted. This court may review these defaulted claims only if Hollins' habeas petition "shows cause for failure to raise them 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 (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 Hollins "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).
While Hollins does not expressly allege cause for his procedural default, he contends that he did not appeal his post-conviction petition to the Illinois Supreme Court because he did not know how, and because the prisoner law clerk was too busy to help Hollins. These reasons do not constitute cause. Hollins' own lack of knowledge is not the sort of external impediment that would justify his failure to raise his claims before the Illinois Supreme Court. See Murray, 477 U.S. at 488 (1986). An entirely subjective standard for cause — such as lack of legal know-how — would render the exhaustion requirement largely meaningless. Further, Hollins had no right to legal counsel after the direct appeal of his conviction to the Illinois Appellate Court. See Steward v. Gilmore, 80 F.3d 1205, 1212 (7th Cir. 1996) ("Ineffective assistance of postconviction counsel is not itself a cognizable federal constitutional violation and may not serve as cause for a procedural default."). Thus, the prisoner law clerk's failure to help Hollins seek Supreme Court review cannot constitute cause.
Hollins' failure to establish cause means that he is precluded from raising any of his claims now unless he can show that it is more likely than not that no reasonable trier of fact would have convicted him absent the alleged constitutional violations. After reviewing the record submitted by the parties, the court finds that Hollins fails to meet this stringent standard.
Excessive Sentence
Because this claim does not bear on Hollins' guilt or innocence, the court's failure to review it would not give rise to a fundamental miscarriage of justice. Further, the claim is meritless. Judging by the materials submitted with Hollins' reply, he objects to the state court's consideration of his juvenile conviction as a triggering offense under the Habitual Criminal Act. Illinois courts, however, have held that juvenile convictions may trigger application of the Act. See People v. Bryant, 663 N.E.2d 105, 111 (Ill.App.Ct. 1996), appeal denied, 684 N.E.2d 1337 (Ill. 1997).
Hollins also argues that because his earliest conviction occurred before the Act's effective date, it should not have been used to trigger the Act's automatic life sentence. This argument fails in light of the Act's 1980 amendment, P.A. 81-1270, § 1. Prior to 1980, only Illinois felony convictions occurring after August 12, 1978 could be used to trigger the Act. In 1980, this time restriction was removed. See People v. Cannady, 513 N.E.2d 118, 119 (Ill.App.Ct.), appeal denied, 517 N.E.2d 1089 (Ill. 1987). Because Hollins was not sentenced until 1988, the amended version of the Act applies, and his pre-1978 conviction may be used as a trigger.
Ineffective Assistance of Counsel (Part I)
Even if Hollins had provided the court with enough facts to review these ineffective assistance allegations, the violations alleged do not give rise to a fundamental miscarriage of justice. Assuming that Hollins' trial counsel failed to inform him of the possibility of a life sentence — an allegation belied by the record — that would not cast doubt on Hollins' conviction. Similarly, his appellate counsel's failure to raise "many issues," and the lack of pretrial mental-health counseling for Hollins do not bear on his guilt or innocence.
Jury Trial/New Trial
Hollins does not indicate why the trial judge's reading of an inculpatory statement from Hollins' co-defendant at his bench trial warranted a jury trial. Nor does Hollins set forth what type of "problems" he was having with his public defenders, much less why the problems justified a new trial. In any event, these claims do not bear on Hollins' guilt or innocence.
Ineffective Assistance of Counsel (Part 2)
Two of these allegations — that Hollins' trial counsel should have moved to substitute judges after the trial judge read an inculpatory statement from Hollins' co-defendant, and that his appellate counsel should have raised conflict of interest and effective assistance issues on appeal — do not bear on Hollins' guilt or innocence.
Hollins' other allegation — that his counsel was ineffective for failing to call Clarence Trotter as an alibi witness — could potentially bear on Hollins' guilt or innocence if the claim was substantiated with evidence. However, Hollins fails to indicate what Trotter's testimony would have been or why he did not testify at trial. Further, Hollins has not provided an affidavit from Trotter setting forth the exculpatory testimony. See Howard v. O'Sullivan, 185 F.3d 721, 724 (7th Cir. 1999) ("Were we to reach the merits of this claim, [the petitioner's] failure to submit supporting affidavits from these potential witnesses would severely hobble his case."). A much greater showing is needed for this type of claim:
"Complaints of uncalled witnesses are not favored in federal habeas review." Murray v. Maggio, 736 F.2d 279, 282 (5th Cir. 1984). Therefore, if the potential witnesses are not called, it is incumbent on the petitioner to explain their absence and to demonstrate, with some precision, the content of the testimony they would have given at trial. The district court simply cannot fulfill its obligation under Strickland to assess prejudice until the petitioner has met his burden of supplying sufficiently precise information.United States ex rel. Cross v. DeRobertis, 811 F.2d 1008, 1016 (7th Cir. 1987) (footnote omitted).
Given Hollins' failure to show how the failure to call Trotter as a witness prejudiced him, this court cannot say that the failure "probably resulted in the conviction of one who is actually innocent.'" Rodriguez, 193 F.3d at 917 (citing Murray, 477 U.S. at 495-96). The claim is procedurally defaulted.
Conclusion
For these reasons, Hollins' petition for a writ of habeas corpus is denied, and this action is dismissed.