Opinion
No. 97 C 8345.
February 25, 2000.
MEMORANDUM AND ORDER
Petitioner Willie Walker, a prisoner at Joliet Correctional Center, brings this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner also moves for appointment of counsel. For the reasons set forth below, the petition and motion are denied.
BACKGROUND
On June 4, 1990, a jury convicted petitioner of first degree murder, intentional homicide of an unborn child, and attempted first degree murder. The facts established at trial indicate that the petitioner forced himself into his ex-girlfriend's apartment and stabbed her as many as 24 times, killing her and her unborn child. Petitioner also stabbed and seriously injured another man who was in the apartment at the time. The Circuit Court of Cook County sentenced him to a term of 80 years for the murder convictions and a term of 25 years for the attempted murder conviction, to run consecutively. Petitioner appealed his conviction on the grounds that the circuit court erred by failing to excuse two prospective jurors for cause; failing to instruct the jury on self defense and second degree murder; allowing inadmissible hearsay testimony; allowing inappropriate expert testimony; and administering an excessive sentence. On June 30, 1995, the Illinois Appellate Court affirmed petitioner's conviction and sentence. The appellate court addressed the merits of all of the claims raised on appeal, except petitioner's argument regarding the expert testimony, which had been waived under state law. On October 4, 1995, the Illinois Supreme Court denied petitioner leave to appeal.
On August 28, 1996, petitioner filed his first petition for post-conviction relief, arguing that the trial court abused its discretion in sentencing him. The Circuit Court of Cook County denied his petition on December 5, 1996. Petitioner initially sought appellate review of the denial, but eventually conceded that his petition was meritless and filed a motion to withdraw his appeal. The Illinois Appellate Court granted petitioner's motion on July 8, 1997.
Petitioner filed a second petition for post-conviction relief on April 3, 1997, claiming: failure of the state's attorney to disclose evidence of petitioner's previous oral statements; improper statements made by the state's attorney during closing argument; ineffective assistance of trial counsel; and ineffective assistance of appellate counsel. On May 21, 1997, the circuit court dismissed his petition under 725 ILCS 5/122-1 as untimely. The court also held that the petition was barred by the doctrines of res judicata and waiver insofar as it raised issues that could have been raised on direct appeal or in the initial post-conviction petition. On June 23, 1998, the Illinois Appellate Court affirmed the circuit court's dismissal of the petition.
On November 25, 1997, petitioner filed the instant petition for writ of habeas corpus. Petitioner argues that the trial court erred by failing to excuse two prospective jurors for cause (ground 1); failing to instruct the jury on self defense and second degree murder (ground 2); allowing inadmissible hearsay testimony (ground 3); allowing inappropriate expert testimony (ground 4); and administering an excessive sentence (ground 5). Petitioner also argues that the state's attorney failed to disclose evidence of petitioner's previous oral statement (ground 6) and made several improper statements during closing argument (grounds 7-9), and that he received ineffective assistance of trial counsel (ground 10) and of appellate counsel (ground 11). The state moved to dismiss the habeas petition as time-barred. On September 22, 1998, this court held the petition timely. Having resolved that issue in favor of the petitioner, we now turn to the procedural posture and merits of petitioner's claims.
DISCUSSION
I. Grounds 4 and 6-11
Many of the grounds upon which petitioner seeks habeas relief are barred under the doctrine of procedural default. It is well established that "[b]efore a federal court may review the merits of a claim raised by a state prisoner in a habeas petition, the petitioner must fulfill the procedural requirements set by state law for seeking judicial review in the state courts." Lemons v. O'Sullivan, 54 F.3d 357, 360 (7th Cir.), cert. denied, 516 U.S. 993 (1995). Procedural default of a claim under § 2254 depends on a state's internal law: "failure to present a claim at the time, and in the way, required by the state is an independent state ground of decision, barring review in federal court." Hogan v. McBride, 74 F.3d 144, 146 (7th Cir. 1996). Procedural default occurs when the petitioner fails to raise his claims appropriately before the state courts, whether on direct review or in a post-conviction proceeding. Farrell v. Lane, 939 F.2d 409, 411 (7th Cir.), cert. denied, 502 U.S. 944 (1991). Alternatively, procedural default occurs when the state court clearly relies on a state procedural bar as the grounds for its denial of relief. Caldwell v. Mississippi, 472 U.S. 320, 327 (1985). A petitioner may raise procedurally defaulted claims in a habeas proceeding only if he can demonstrate cause for the default and prejudice resulting from the default, or that failure to consider his claim will result in a "fundamental miscarriage of justice." Cawley v. DeTella, 71 F.3d 691, 695 (7th Cir. 1995).
Applying these principles, we find that petitioner has procedurally defaulted much of his habeas petition. Grounds 6-11 of the petition are barred from habeas review because the circuit court dismissed petitioner's second post-conviction petition, which contained these claims, on the independent grounds of untimeliness. Under 725 ILCS 5/122-1, a petitioner must file for post-conviction relief within six months of the denial of his petition for leave to appeal or three years from the date of his conviction, whichever is sooner. Here, petitioner filed his second petition for post-conviction relief on April 3, 1997, nearly seven years after the date of his conviction and 18 months after the Illinois Supreme Court denied his petition for leave to appeal. The circuit court consequently dismissed his petition as untimely. Dismissal pursuant to 725 ILCS 5/122-1 constitutes an independent state procedural grounds for decision, defaulting review of grounds 6-11 on habeas. See Coleman, 501 U.S. 722, 729-30 (1991); Hoard v. Gilmore, 1999 WL 51794, *3 (N.D. Ill. Jan. 30, 1999); Gonzalez v. Thornton, 1999 WL 92902, *2 (N.D. Ill. Feb. 17, 1999).
The result with respect to grounds 6-11 is the same if we address petitioner's first post-conviction petition. That petition was untimely filed on August 28, 1996 and dismissed on December 5, 1996. Petitioner abandoned his appeal of that denial. Under Illinois law, any grounds for post-conviction relief that could have been but were not raised in the first petition are deemed waived. See 725 ILCS 5/122-3; Carroll v. DeTella, 983 F. Supp. 1135, 1142 (N.D. Ill. 1997). All claims raised in petitioner's second post-conviction petition, which the circuit court held was not a successive petition, could have been raised in his first petition. Therefore, when viewed in light of his first petition, petitioner has waived the claims raised in his second petition and consequently defaulted them on habeas. We nonetheless consider the second petition on its own accord, for it was the last "vehicle" petitioner "employed for presenting a claim to an Illinois court" and "a state court may choose to ignore or forgive non-compliance with its own rules." Carroll, 983 F. Supp. at 1142 (citing Cawley, 71 F.3d at 694-95 n. 6).
In ground 4, petitioner claims that the circuit court erred by allowing police officers to testify as experts regarding blood splatters on the walls of the victim's apartment, an argument raised on direct appeal. The Illinois Appellate Court rejected the argument on procedural grounds, holding that petitioner's failure to make a contemporaneous objection at trial and file a post-trial motion constituted waiver under Illinois law. See People v. Reid, 554 N.E.2d 174, 179 (Ill. 1990); People v. Enoch, 522 N.E.2d 1124 (Ill.), cert. denied, 488 U.S. 917 (1988). Waiver is an independent state procedural grounds for dismissal and the state court's reliance on that doctrine constitutes procedural default of ground 4. See Aliwoli v. Gilmore, 127 F.3d 632, 634 (7th Cir. 1997).
Petitioner may raise procedurally defaulted claims on habeas only if he can show cause and prejudice, or a fundamental miscarriage of justice. See Cawley, 71 F.3d at 695. Petitioner gives no reason for the untimeliness of his post-conviction petition, and therefore his default of grounds 6-11 cannot be excused. As for ground 4, petitioner's arguments imply that the ineffective assistance of his trial counsel was the cause for his failure to object to the police officers' testimony at trial. A petitioner may establish cause for procedural default by showing that his trial counsel's performance violated his Sixth Amendment guarantees. See Momient-El v. DeTella, 118 F.3d 535, 541 (7th Cir.), cert. denied, 522 U.S. 984 (1997). However, the Supreme Court requires "that a claim of ineffective assistance be presented to the state courts as an independent claim before it may be used to establish cause for a procedural default." Murray v. Carrier, 477 U.S. 478, 489 (1986). Petitioner did not properly present an ineffective assistance of counsel claim to the state courts regarding the police officers' testimony. See Reed v. Gilmore, 1999 WL 160381, *6 (N.D. Ill. Mar. 16, 1999); Shimer v., Barnett, 1998 WL 774972, *5 (N.D. Ill. Oct. 27, 1998). Therefore, petitioner's procedural default of ground 4 cannot be excused.
The first time petitioner presented that claim to the state courts was in his second petition for post-conviction relief. The claims contained in that petition were dismissed on the independent state procedural grounds of untimeliness and therefore cannot be considered on habeas, either as a ground for relief or as an excuse for procedural default. See Maciel v. Carter, 22 F. Supp.2d 843, 859 (N.D. Ill. 1998); see also Morrison v. Duckworth, 898 F.2d 1298, 1300-01 (7th Cir. 1990) ("Because [petitioner] did not establish cause for defaulting his claims of ineffective assistance of trial and appellate counsel, he cannot advance these claims as cause for his failure to present other claims at trial and on direct appeal").
II. Ground 5
Ground 5 of the petition, in which the petitioner claims that he has been subject to an excessive sentence, also is barred from habeas review. Petitioner properly raised this issue on direct appeal and the appellate court addressed it on the merits; therefore, it is not procedurally defaulted. As a general rule, however, "a federal court will not review state sentencing determinations that fall within statutory limits." Williams v. Duckworth, 738 F.2d 828, 831 (7th Cir. 1984), cert. denied, 469 U.S. 1229 (1985). The sentence here was within the statutory range provided by Illinois law, and petitioner does not claim otherwise. Furthermore, the Illinois Appellate Court reviewed the applicable sentencing statutes and the circumstances surrounding petitioner's crimes. After taking into consideration mitigating and aggravating factors, the appellate court affirmed petitioner's sentence. We do not find that the sentence imposed by the trial court and affirmed by the appellate court was so "grossly disproportionate" to the crimes committed as to merit relief on habeas. See Koo v. McBride, 124 F.3d 869, 875 (7th Cir. 1997); Gilford v. Carter, 1999 WL 543188, *6-7 (N.D. Ill. July 22, 1999).
III. Grounds 1-3
Petitioner has not defaulted the claims raised in grounds 1-3 of his petition and therefore we address them on the merits. The standard of review is strict. Under 28 U.S.C. § 2254 (d), as amended in 1996, an application for writ of habeas corpus shall not be granted unless the state decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by" the United States Supreme Court, or "was based on an unreasonable determination of the facts in light of the evidence presented." 28 U.S.C. § 2254 (d)(1), (2). The "contrary to" provision of § 2254(d)(1) applies to questions of law. See Lindh v. Murphy, 96 F.3d 856, 868 (7th Cir. 1996) ( en banc), rev'd on other grounds, 521 U.S. 320 (1997). The "unreasonable application of" provision of § 2254(d)(1) applies to mixed questions of law and fact, and thus where the state court offers "a responsible, thoughtful answer reached after a full opportunity to litigate" the question, a federal court on habeas review must accept that answer as "adequate to support the judgment." Id. at 871. If the state court asked the legally correct question, then its "fact-specific answer cannot be called `unreasonable' even if it is wrong." Id. at 867-77. As for § 2254(d)(2), "the state court's determination of all factual issues is presumptively correct" and it is petitioner's burden "to rebut that presumption by clear and convincing evidence." Smith v. Gilmore, 1999 WL 66571 (N.D. Ill. Feb. 8, 1999). We will consider the merits of grounds 1-3 with these standards in mind.
Petitioner alleges in ground 1 of his petition that the trial court violated his right to a fair and impartial jury under the Sixth Amendment. Petitioner argues that although jurors Worthen and Stevens demonstrated during voir dire that they were unable to be fair and impartial, the trial court refused to grant his challenge for cause and forced him to use two of his peremptory challenges instead. Pointing to voir dire testimony, petitioner claims that juror Worthen, a former missionary, had "strong religious beliefs" and "personal convictions" that would make it difficult for him to be fair to both sides. Similarly, petitioner argues that juror Stevens' prior experience of being threatened with a knife raised doubt about her impartiality. In the very testimony petitioner relies on, however, both jurors state that they would base their decision on evidence presented in the courtroom and not on their personal views. After voir dire, the trial court refused to excuse the two jurors for cause. Petitioner then exercised two of his peremptory challenges to remove Worthen and Stevens from the panel. He later ran out of challenges and could not peremptorily strike two other jurors who he claims were "objectionable."
When considering a Sixth Amendment claim of jury bias, we must review only those jurors who actually sat on the allegedly impartial jury, and not those jurors who were dismissed. Even where a petitioner claims that the trial court improperly failed to remove a juror for cause and thereby forced him to use a peremptory challenge, a petitioner must focus his claim not on the challenged jurors who were removed by peremptory strike, but on the jurors who ultimately sat at the trial. Ross v. Oklahoma, 487 U.S. 81, 86 (1988). So long as the jury that sat was impartial, "the loss of a peremptory challenge [does not] constitute a violation of the constitutional right to an impartial jury" Id. at 88; see Pitsonbarger v. Gramley, 103 F.3d 1293, 1304 (7th Cir. 1996), vacated on other grounds, 522 U.S. 802 (1997). Petitioner does not claim that the jurors who convicted him were biased or otherwise not impartial. He merely asserts, without elaboration, that his lack of peremptory challenges left him unable to remove two jurors he found to be "objectionable." This is not enough to establish bias on the part of the jury.
Petitioner pressed this issue on appeal. The appellate court observed that Illinois law provides a trial court broad discretion in voir dire. See People v. Gleash, 568 N.E.2d 348, 353 (Ill.App. 1 Dist.), appeal denied, 575 N.E.2d 918 (1991). The appellate court proceeded to conduct a careful review of the voir dire transcript and held that the trial court's denial of petitioner's challenges for cause was not improper. We agree. The trial court's decision was neither "contrary to" nor "an unreasonable application of" clearly established federal law, and was not "based on an unreasonable determination of the facts in light of the evidence presented." See 28 U.S.C. § 2254 (d)(1) and (2); Johnson v. Tally, 47 F. Supp.2d 943, 957 (N.D. Ill. 1999). Petitioner was not denied his Sixth Amendment right to an impartial jury, and we therefore dismiss ground 1 of his petition.
In ground 2, petitioner claims that the trial court violated his constitutional rights by failing to tender jury instructions on self defense and on second degree murder. "When there is evidentiary support for a defendant's theory of self-defense, failure to instruct on self-defense violates a criminal defendant's Fifth and Sixth Amendment rights." Everette v. Roth, 37 F.3d 257, 261 (7th Cir. 1994), cert. denied, 515 U.S. 1163 (1995). On direct appeal the Illinois Appellate Court considered and rejected petitioner's claim that the trial court wrongfully refused to instruct the jury on self defense. The court found no evidentiary support for petitioner's argument in the record. On the contrary, it held that the evidence "clearly demonstrates that defendant was the aggressor" and that he "pushed his way into [the victim]'s apartment and after initiating a confrontation with the victims obtained a knife and savagely slashed [the victim] to death." We agree with the appellate court. The facts elicited at trial portray only one scenario: petitioner forced his way into his ex-girlfriend's apartment, attacked and killed her with a knife, and similarly attacked and injured another man in the apartment. The facts simply do not support a self-defense instruction, and there has been no constitutional violation committed here.
Petitioner also argues in ground 2 that the trial court failed to submit a second degree murder instruction to the jury based on his theories of unreasonable belief and provocation. Failure to instruct the jury on second degree murder violates the petitioner's constitutional rights only if the failure resulted in a "fundamental miscarriage of justice." Everette, 37 F.3d at 261. A fundamental miscarriage of justice results "if credible evidence in the record would support a verdict based on [the omitted] instruction." Id. As the trial court held and the appellate court affirmed, the evidence in this case did not support a second degree murder instruction. Petitioner argues that the trial court misread state case law when it held that grounds for an instruction did not exist under the provocation statute. It is well settled, however, that we may not issue a writ of habeas corpus on a perceived error of state law. See Estelle v. McGuire, 502 U.S. 62, 67 (1991); Tenner v. Gilmore, 1998 WL 721115, *8-9 (N.D. Ill. Oct. 8, 1998), aff'd, 184 F.3d 608 (7th Cir.), cert. denied, 120 S.Ct. 592 (1999). The state courts did not err in concluding that there was no support for a second degree murder instruction and, under the deferential standards of § 2254, we hold that this decision has not resulted in a fundamental miscarriage of justice.
Even if the trial court erred in failing to instruct on self-defense and second degree murder, petitioner is not entitled to habeas relief where that error was harmless. Everette, 37 F.3d at 262 n. 17. Only errors that result in "actual prejudice" are actionable on habeas; an error is considered harmless unless it had "`a substantial and injurious effect or influence in determining the jury's verdict.'" Brecht v. Abrahamson, 507 U.S. 619, 637 (1993); see Everette, 37 F.3d at 262; Savickas v. Bosse, 28 F. Supp.2d 1050, 1061-62 (N.D. Ill. 1998). There has been no actual prejudice to the petitioner. Based on our review of the record we believe that it is clear that a jury would have reached the same verdict had it been given instructions on self-defense and second degree murder. Ground 2 does not support a claim for habeas relief.
Finally, ground 3 of the petition claims that the trial court violated petitioner's Sixth Amendment rights by allowing inadmissible hearsay testimony. Upon arriving at the scene of the crime the investigating officer entered the victim's apartment and found the victim's two daughters. At trial, over defense attorney's objections, the investigating officer testified that the victim's eight-year old daughter stated, "Willie hurt me," "Willie hurt my mother," and "Willie hurt Bobby, her dad." Petitioner argued on direct appeal, and argues again here on habeas, that these statements were inadmissible hearsay testimony. The Illinois Appellate Court disagreed with petitioner, holding that the statements were admissible under state law because the testimony concerned the officer's investigatory acts within a short time after the murder. The Seventh Circuit has held that "state court evidentiary rulings, because they are a matter of state law, will rarely serve as a proper basis for granting a writ of habeas corpus." Haas v. Abrahamson, 910 F.2d 384, 389 (7th Cir. 1990); see Gonzalez v. DeTella, 127 F.3d 619, 621 (7th Cir. 1997), cert. denied, 523 U.S. 1032 (1998). Habeas relief is appropriate only where the trial court's evidentiary ruling denied the defendant the right to a fundamentally fair trial. See Abrams v. Barnett, 121 F.3d 1036, 1042 (7th Cir. 1997). Both the trial court and the appellate court held that the investigating officer's testimony was admissible, and we will not disturb that judgment on habeas review. Nothing in the record suggests that the testimony, even if it was wrongfully admitted, resulted in an unfair trial. The evidence against petitioner was overwhelming here and the allegedly hearsay testimony of the investigating officer played a relatively minimal role at trial. The challenged testimony does not entitle petitioner to habeas relief.
CONCLUSION
For the foregoing reasons, the petition for writ of habeas corpus and motion for appointment of counsel are denied.
JUDGMENT IN A CIVIL CASE
Jury Verdict. This action came before the Court for a trial by jury. The issues have been tried and the jury rendered its verdict.
Decision by Court. This action came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered.
IT IS HEREBY ORDERED AND ADJUDGED that the petition for writ of habeas corpus and motion for appointment of counsel are denied.