Opinion
No. 98 C 2937.
January 11, 2001
MEMORANDUM OPINION AND ORDER
On November 29, 2000, this court denied petitioner Donald Johnson's habeas corpus petition finding that two of his habeas claims were procedurally defaulted and that his non-defaulted claims did not justify his release under 28 U.S.C. § 2254. Presently, Petitioner seeks a certificate of appealability so that he may appeal this court's November 29 ruling. For the reasons articulated below, the court grants in part and denies in part Petitioner's request.
LEGAL STANDARDS
The court may issue a certificate of appealability "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). This demonstration "includes showing that reasonable jurists could debate whether (or for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further." Slack v. McDaniel, 529 U.S. 473, 120 S.Ct. 1595, 1604, 146 L.Ed.2d 542 (2000) (citing Barefoot v. Estelle, 463 U.S. 880, 893 and n. 4, 103 S.Ct. 3383, 3394, 77 L.Ed.2d 1090 (1983) (internal quotation marks omitted). See also Porter v. Gramley, 112 F.3d 1308, 1312 (7th Cir. 1997) ("A petitioner . . . must . . . demonstrate that an issue is debatable among jurists of reason or that the questions "deserve encouragement to proceed further.") (quoting Barefoot, 463 U.S. at 893, 103 S.Ct. 3394). This standard applies to claims denied both on procedural grounds and on the merits, but petitioners with claims denied on procedural grounds have the additional burden of showing "that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Slack, 120 S.Ct. at 1604. The court need not examine both of the certificate's requirements for claims denied on procedural grounds if it finds that resolution of One issue "is more apparent from the record and arguments" and can dispose of the application. Id.
DISCUSSION
Petitioner raised six claims in his petition. Specifically, Petitioner claimed that (1) the prosecution failed to prove beyond a reasonable doubt that he committed burglary, (2) the state withheld crucial exculpatory evidence, (3) the prosecution knowingly put on false testimony, and (4) his trial counsel was ineffective for (a) failing to call a shoe print expert, (b) failing to bring to the trial court's attention that the prosecution knowingly put on false testimony, and (c) failing to tender to the jury an instruction on a lesser included offense. This court determined that Petitioner's claims of ineffective assistance of counsel based on the failure to tender a jury instruction and the withholding of exculpatory evidence were procedurally barred and found the remaining claims without merit. Petitioner's one paragraph application states that jurists of reason would find it debatable whether this court correctly ruled and that the petition was incorrectly decided but contains no argument in support of this position.
Petitioner did not raise his ineffective assistance of counsel jury instruction argument until his petition for post-conviction relief, and further failed to meet the criteria set forth by the Illinois Supreme Court for considering a claim first presented in a post-conviction relief petition — that is, Petitioner did not argue that his appellate counsel was ineffective for failing to raise the issue. See People v. Coleman, 168 Ill.2d 509, 522, 660 N.E.2d 919, 927, 214 Ill. Dec. 212, 220, cert. denied, Coleman v. Illinois, 519 U.S. 827, 117 S.Ct. 91, 136 L.Ed.2d 47 (1996). In addition, Petitioner failed to even argue that this claim should have been considered even though procedurally defaulted based on the relevant criteria. See Anderson v. Cowen, 227 F.3d 893, 899 (7th Cir. 2000). Finally, the court notes that, although unnecessary, it did address the merits of this claim and found that Petitioner failed to meet the strict requirements for showing ineffective assistance of counsel set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L. Ed. 2d 674 (1984). This court can find, and petitioner has offered, no reason why reasonable jurists would debate any of these issues or that they deserve encouragement to proceed further.
The court comes to the same conclusion for Petitioner's claim that exculpatory evidence was withheld, a claim that also was never raised in the state court proceedings. Petitioner's claim that his appellate counsel was ineffective for failing to raise the issue and this ineffectiveness constituted cause to excuse his procedural default was itself procedurally defaulted, see Edwards v. Carpenter, 529 U.S. 446, 120 S.Ct. 1587, 146 L.Ed.2d 518 (2000), and Petitioner failed to show that fundamental miscarriage of justice would result from failing to consider this claim, particularly since his trial counsel elicited testimony from a police officer regarding the evidence Petitioner claims was withheld. See Schlup v. Delo, 513 U.S. 298, 329, 115 S.Ct. 851, 868, 130 L.Ed.2d 808 (1995).
With regard to Petitioner's claim that the prosecution failed to prove guilt beyond a reasonable doubt, however, arguably reasonable jurists may have come to a conclusion different from that reached by this court. Although the Illinois Appellate Court applied the correct standard of review, see Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789 (1979), there exists the possibility that a reasonable jurist may have found that the Illinois Appellate Court's application of that standard was unreasonable. Hence, the court grants Petitioner's request for a certificate of appealability on his claim that the prosecution failed to prove guilt beyond a reasonable doubt.
The court cannot find that reasonable jurists would debate that the balance of Petitioner's claims or that they deserve encouragement to proceed. Petitioner's false and perjured testimony argument rested on testimony that, at most, was merely inconsistent, a result the Seventh Circuit has found does not adequately support knowing use of false testimony. See Shore v. Warden, 942 F.2d 1117, 1122 (7th Cir. 1991) and United States v. Saadeh, 61 F.3d 510, 523 (7th Cir. 1995). Moreover, Petitioner's counsel could not have possibly been ineffective for failing to bring a meritless issue to the trial court's attention. Finally, Petitioner's argument regarding a shoe print expert was wholly unsupported in his petition. Therefore, notwithstanding the fact that this court has determined that Petitioner may appeal the denial of his claim that the State failed to prove guilt beyond a reasonable doubt, the court does not believe that this ineffective assistance of counsel claim meets the criteria for a certificate to issue.
CONCLUSION
For the above-stated reasons, the court grants Petitioner's request for a certificate of appealability with regard to his claim that the prosecution failed to prove him guilty beyond a reasonable doubt but denies his request for all other claims stated in his habeas corpus petition.