Opinion
No. 96 C 8428
May 30, 2000
MEMORANDUM OPINION AND ORDER
State prisoner Aryules Bivens has filed a petition for a writ of habeas corpus, alleging seven grounds on which his conviction and sentence for first-degree murder and armed robbery are constitutionally infirm. The court finds that Bivens has procedurally defaulted as to six of the seven grounds — five by failing to raise them before the Illinois Supreme Court, and one because it was presented solely as a state-law issue before the state courts. As for the other ground, the court finds no error by the state courts that would warrant a grant of habeas under 28 U.S.C. § 2254. Bivens' petition is denied.
Background
Stemming from the 1982 robbery and shooting death of Kelvin Coleman, petitioner Bivens was convicted on August 23, 1983 of first-degree murder and armed robbery after a jury trial and sentenced to natural life imprisonment without parole for the murder, and to a consecutive extended sixty-year imprisonment term for the armed robbery. At trial, Bivens was implicated by his own detailed statement to police; the testimony of the victim's mother, who witnessed the shooting; and the statement of a participant in the crime, who was tried separately.
Bivens appealed his conviction and sentence to the Illinois Appellate Court, raising five claims:
(1) that the trial court erred in denying his motion to quash his arrest and suppress evidence;
(2) that he was denied effective assistance of counsel;
(3) that he was denied a fair trial because of prosecutorial misconduct during trial;
(4) that his natural-life prison sentence for the murder was an abuse of the trial court's discretion; and
(5) that the sixty-year consecutive, extended prison sentence for the armed robbery was improper.
The Illinois Appellate Court affirmed Bivens' convictions, but vacated his sentences, and remanded the case solely for resentencing. The State sought leave to appeal in the Illinois Supreme Court, claiming that the trial court's sentencing was proper. On April 7, 1988, the Illinois Supreme Court denied the State's petition for leave to appeal. Bivens failed to seek leave to appeal in the Illinois Supreme Court as to any of the issues that he raised before the Illinois Appellate Court.
At the remanded sentencing hearing, Bivens was sentenced to an extended eighty-year prison term for the murder, along with a concurrent thirty-year term for the armed robbery. Bivens appealed the extended eighty-year sentence for the murder, arguing that the crime was not exceptionally brutal, heinous, or indicative of wanton cruelty, as required by the Illinois extended-term statute. The Illinois Appellate Court affirmed the sentence, finding that the crime met the statutory criteria.
Bivens then sought leave to appeal in the Illinois Supreme Court, claiming only that the appellate court erred in affirming the extended eighty-year sentence because the crime was not exceptionally brutal, heinous, or indicative of wanton cruelty. On October 2, 1991, the Illinois Supreme Court denied Bivens' motion for leave to appeal.
On December 13, 1990, Bivens filed a pro se post-conviction petition in state court, raising twelve claims Ten claims offered various reasons why Bivens' trial counsel was constitutionally ineffective; one claim alleged that the testimony of Coleman's mother was the result of police coercion; and one claim alleged that Bivens was denied due process because he was not taken before a magistrate, but was detained for the sole purpose of obtaining his confession. The State filed a motion to dismiss Bivens' post-conviction petition, arguing that the claims were barred by res judicata and waiver. On October 21, 1993, the circuit court summarily dismissed the petition without an evidentiary hearing.
Bivens appealed the dismissal of his post-conviction petition. The State Appellate Defender, finding no issues of arguable merit, filed a motion for leave to withdraw as counsel. In response to his counsel's motion for leave to withdraw, Bivens argued that: (1) he was denied effective assistance of post-conviction counsel when counsel failed to amend his pro se post-conviction petition; (2) he was denied effective assistance of counsel when his counsel failed to file a motion to suppress Bivens' statement to police; (3) he was deprived of his right to due process when police failed to follow proper post-arrest procedures and he was denied an opportunity to appear before a judge to determine the validity of his detention. On October 6, 1995, the Illinois Appellate Court affirmed the circuit court's dismissal of Bivens' post-conviction petition and granted his counsel's motion to withdraw.
Bivens then sought leave to appeal the denial of his post-conviction petition in the Illinois Supreme Court, raising four claims:
(1) that the Illinois Appellate Court denied him due process by not having the voluntariness of his statement determined by the circuit court;
(2) that the Illinois Appellate Court neglected to rule on Bivens' claim that he was not given a hearing on the voluntariness of his statement;
(3) that the Illinois Appellate Court erred in not finding that Bivens was denied effective assistance of counsel based on his trial counsel's failure to file a motion to suppress his statement;
(4) that the Illinois Appellate Court erred in not finding that his trial counsel was ineffective because the counsel's failure to file a motion to suppress Bivens' statement prevented the issue from being preserved for appeal.
On April 3, 1996, the Illinois Supreme Court denied Bivens' motion for leave to appeal.
The Habeas Petition
Through his petition for a writ of habeas corpus, Bivens has raised a total of seven claims before this court:
Claim 1: Bivens alleges that he was denied a fair trial because of prosecutorial misconduct based on the State's references to Coleman as a deaf-mute, and the State's suggestion that defense witnesses were part of a conspiracy. Bivens raised the issue of prosecutorial misconduct on direct appeal before the Illinois Appellate Court, but not before the Illinois Supreme Court. He did not raise the issue in post-conviction proceedings.
Claim 2: Bivens alleges that he received ineffective assistance of counsel because his trial counsel, in moving to quash Bivens' arrest and suppress evidence, erroneously argued that Bivens' initial arrest was without probable cause. Although styled somewhat differently, Bivens raised this issue on direct appeal before the Illinois Appellate Court, but not before the Illinois Supreme Court. Bivens also raised this issue in his post-conviction petition to the circuit court, but not in his appeal of the petition's denial to the Illinois Appellate Court or Illinois Supreme Court. Claim 3: Bivens alleges that he received ineffective assistance of counsel based on his trial counsel's failure to challenge the voluntariness of Bivens' confession. Bivens raised this issue on direct appeal before the Illinois Appellate Court, but not before the Illinois Supreme Court. Bivens also raised this issue in his post-conviction petition to the circuit court, and in his appeal of the petition's denial to the Illinois Appellate Court and Illinois Supreme Court.
Bivens did not confess to shooting Coleman himself. Rather, he told police that he acted as a lookout while his friend robbed Coleman, and that he encouraged his friend to shoot Coleman so as not to leave any witnesses.
Claim 4: Bivens claims that he received ineffective assistance of counsel based on his trial counsel's failure to investigate the circumstances surrounding Bivens' confession. Bivens did not raise this issue on direct appeal. Although styled differently, Bivens did raise this issue in his post-conviction petition to the circuit court, and in his appeal of the petition's denial to the Illinois Appellate Court, but not in his petition for leave to appeal in the Illinois Supreme Court.
Claim 5: Bivens claims that he received ineffective assistance of counsel because his trial counsel discouraged Bivens from testifying at trial. Bivens did not raise this issue on direct appeal. Bivens did raise it in his post-conviction petition to the circuit court, but not in his appeal of the petition's denial to the Illinois Appellate Court or Illinois Supreme Court.
Claim 6: Bivens alleges that he received ineffective assistance of counsel based on his trial counsel's failure to impeach Coleman's mother by challenging her ability to identify Bivens. Bivens raised this issue on direct appeal before the Illinois Appellate Court, but not before the Illinois Supreme Court. Although styled somewhat differently, Bivens also raised this issue in his post-conviction petition to the circuit court, but not in his appeal of the petition's denial to the Illinois Appellate Court or Illinois Supreme Court.
Claim 7: Bivens alleges that the trial court abused its discretion by imposing an eighty-year extended sentence for murder. Bivens raised this issue on direct appeal before the Illinois Appellate Court and the Illinois Supreme Court.
ANALYSIS Timeliness of the Habeas Petition
The Antiterrorism and Effective Death Penalty Act (AEDPA), Pub.L. 104-132, 110 Stat. 1218 (1996), applies to all habeas petitions filed after the Act's effective date — April 24, 1996. See Lindh v. Murphy, 521 U.S. 320, 336 (1997). Therefore, Bivens' habeas petition — filed December 19, 1996 — is governed by the AEDPA's provisions. Among these provisions is a one-year limitations period for the filing of habeas actions that normally runs from "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244 (d)(1). For petitioners such as Bivens, whose convictions became final before the AEDPA took effect, the one-year limitations period runs from the Act's effective date. See Gendron v. United States, 154 F.3d 672, 675 (7th Cir. 1998), cert. denied, 119 S.Ct. 1758 (1999). Given that Bivens' petition was filed less than one year after April 24, 1996, it is timely.
Procedurally Defaulted Claims
Under 28 U.S.C. § 2254, as amended by the AEDPA, the court may not grant Bivens' 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, 526 U.S. 838, 842 (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 845 (internal brackets omitted).
To meet this "exhaustion" requirement, Bivens "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 (7th Cir. 1999) (citing Verdin v. O'Leary, 972 F.2d 1467, 1472 (7th Cir. 1992)). Fair presentment requires Bivens "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.
Presentation to illinois Supreme Court
Because Bivens did not seek leave to appeal Claims One, Two, Four, Five or Six in the Illinois Supreme Court — either on direct or post-conviction appeal — those claims are procedurally defaulted. 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, 526 U.S. at 845. This includes seeking discretionary review in the Illinois Supreme Court on both direct appeal, see id. at 846-48, and post-conviction appeal. See White v. Godinez, 192 F.3d 607, 608 (7th Cir. 1999). Thus, even if certain aspects of Bivens' ineffective assistance of counsel claims arguably could not have been raised on direct appeal, Bivens 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).
Fair Presentment
Bivens did not give the state courts a fair opportunity to remedy the constitutional violations alleged in his habeas petition if his arguments raising the claims in state court did not: (1) rely on pertinent federal cases employing constitutional analysis; (2) rely on state cases applying constitutional analysis to a similar factual situation; (3) assert the claim in terms so particular as to call to mind a specific constitutional right; or (4) allege a pattern of facts that is well within the mainstream of constitutional litigation. Verdin, 972 F.2d at 1473-74. Where a petitioner has not met any of these conditions, "the court will not consider the state courts to have had a fair opportunity to consider the claim." Id at 1474.
Claim Seven of Bivens' petition — alleging that the trial court abused its discretion by sentencing Bivens to an eighty-year extended prison term for Coleman's murder — is procedurally defaulted because Bivens failed to present it as a federal constitutional claim to the state courts. On direct appeal of the sentence, Bivens argued that the extended-term sentence was unwarranted because the crime was not "exceptionally brutal or heinous," as required by the Illinois extended-term statute. (Exh. G to Resp.'s Answer at 7) In seeking leave to appeal in the Illinois Supreme Court, Bivens argued that the appellate court misinterpreted the extended-term statute. (Exh. J to Resp.'s Answer)
Bivens' appellate arguments simply asked the state courts to apply a state statute's language to the facts of his case. There was no federal constitutional aspect to the claim. (Indeed, even as presented in his habeas petition, the court is hard-pressed to discern a federal constitutional aspect to the claim.) Bivens did not cite any federal case law, cite any state cases applying a federal constitutional analysis to a similar factual situation, assert a federal constitutional claim in particular terms, or allege facts within the mainstream of constitutional litigation, To the extent that Claim Seven of Bivens' habeas petition alleges a violation of the Eighth Amendment prohibition against cruel and unusual punishment, the state courts were not given an opportunity to remedy that violation, Accordingly, Claim Seven is procedurally defaulted.
Excuse for Procedural Default
Because Claims One, Two, Four, Five, Six, and Seven are procedurally defaulted, this court may not review them unless Bivens' 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, 91 (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 Bivens "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 E.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).
Bivens does not allege "cause" for any of his claims' defaults. While ineffective assistance of counsel can, under certain circumstances, constitute cause to excuse a procedural default, Bivens' petitions for leave to appeal — through which Bivens abandoned Claims One, Two, Four, Five, and Six and presented Claim Seven only in terms of state law — were filed pro se by Bivens.
As for the "fundamental miscarriage of justice" exception, none of Bivens' defaulted claims, even assuming them to be true, suggest that an innocent defendant was convicted. Claim One — alleging prosecutorial misconduct based on the State's references to the victim as a deaf mute and to the defense witnesses as participants in a conspiracy — does not bear on Bivens' guilt or innocence, nor call into question the fundamental fairness of Bivens' trial.
In Claim Two, Bivens argues that his trial counsel was ineffective because, in seeking to quash Bivens' arrest and suppress related evidence, he erroneously argued that there was no probable cause for the arrest. This does not bear on Bivens' guilt or innocence. In Claim Four, Bivens alleges that his trial counsel failed to investigate the circumstances surrounding Bivens' confession. Bivens alleges that his counsel should have investigated Bivens' claims that he was "taken advantage of' by police after a high-speed chase and crash, and that his subsequent confession was not voluntary. (Habeas Pet. ¶ 11(D)) As discussed below, the state courts found no support for Bivens' allegation that the chase and crash affected the voluntariness of his confession. Further, Bivens has not — and cannot — show that the failure to investigate the circumstances of his confession resulted in the conviction of an innocent defendant. As the Illinois Appellate Court noted, "The evidence of the defendant's guilt was tremendously overwhelming." People v. Bivens, 516 N.E.2d 738, 743 (Ill.App.Ct. 1987).
In Claim Five, Bivens alleges that his trial counsel was ineffective because he prevented Bivens from testifying at trial. This was a tactical decision by Bivens' trial counsel, and does not bear on Bivens' guilt or innocence. In Claim Six, Bivens challenges his trial counsel's failure to impeach the ability of Coleman's mother to identify Bivens. Again, this is a tactical decision by counsel. Further, given the other substantial evidence implicating Bivens, the failure to impeach Coleman's mother does not call into question Bivens' conviction. Claim Seven challenges only the appropriateness Bivens' sentence, and so does not bear on Bivens' guilt or innocence.
None of the six claims that Bivens failed to raise properly in state court present a "'fundamental miscarriage of justice' . . . where 'a constitutional violation has 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). As such, the claims are procedurally defaulted under 28 U.S.C. § 2254, and the court cannot review them.
Claims Properly Raised on Habeas Review
The only claim presented in Bivens' habeas petition which is not procedurally defaulted is Claim Three, in which Bivens alleges that his trial counsel rendered constitutionally ineffective assistance by failing to challenge the voluntariness of his confession. This claim fails on the merits.
Because the Illinois Appellate Court addressed the merits of the claim in affirming the circuit court's denial of Bivens' post-conviction petition ( see Exh. O), this court need not determine whether Bivens waived Claim Three by failing to present it to the Illinois Supreme Court on direct appeal.
As long as the Illinois Appellate Court employed the proper constitutional framework in analyzing Bivens' claim, this court will leave any reasonable determination reached by that court undisturbed. In Lindh v. Murphy, 96 F.3d 856, 870 (7th Cir. 1996), rev'd on other grounds, 521 U.S. 320 (1997), the Seventh Circuit rejected the notion that the recently amended § 2254 authorizes the issuance of a habeas writ whenever a court errs. While the federal courts must ensure that state courts adhere to the legal principles set forth by the United States Supreme Court, "when the dispute lies not in the meaning of the Constitution, but in its application to a particular set of facts. . . sec. 2254(d)(1) restricts the grant of collateral relief to cases in which the state's decision reflects "an unreasonable application of the law." Id. In other words, § 2254(d)(1) "tells federal courts: Hands off, unless the judgment in place is based on an error grave enough to be called "unreasonable."' Id. However, if a federal court, after carefully weighing the reasons underlying the state court's judgment, "is convinced that a prisoner's custody . . . violates the Constitution, that independent judgment should prevail." Williams v. Taylor, 120 S.Ct. 1495, 1511 (2000).
To prevail on an ineffective assistance claim under the Sixth Amendment, Bivens must establish two components:
First, the defendant must show that counsel's performance was deficient. This requires. showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.Strickland v. Washington, 466 U.S. 668, 687 (1984). Further, the Supreme Court has warned that "[j]udicial scrutiny of counsel's performance must be highly deferential," given that "it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable." Id. at 689.
Applying the Strickland standard, the Illinois Appellate Court rejected Bivens' ineffective assistance of counsel claim in unequivocal terms:
In the instant case there is no reasonable probability" that had defendant's counsel resorted to the trial tactics to which defendant now suggests his counsel should have resorted the proceeding would have been different. . . . The evidence of the defendant's guilt was tremendously overwhelming. By reason thereof and based on the testimony of the eyewitness, the victim's mother, the testimony of the police officers and the assistant State's Attorney, the defendant's admission of his participation in the offense and the evidence as a whole, we are firmly and unalterably convinced that the defendant's counsel staunchly advocated the defendant's cause and that he loyally and with unflagging fidelity represented the defendant . . . . Defendant's contention to the contrary does not merit further discussion.Bivens, 516 N.E.2d at 743.
This court agrees. Bivens' ineffective assistance claim fails both of the Strickland requirements. Under the first prong, the "error" set forth in Claim Three does not evidence a constitutionally deficient performance by his trial counsel. Bivens alleges that his counsel, "knowing that the defendant had been in auto chase and crash, which left defendant unaware of the events following the crash," failed to move to suppress his confession to police, which was obtained from Bivens after the chase and crash. (Habeas Pet. ¶ 11(C)) In affirming the denial of Bivens' post-conviction petition, the Illinois Appellate Court found that "there is no indication in the record that defendant was injured in the car crash." (Exh. O to Resp.'s Answer at 5) The appellate court also found that Bivens' "answers to interrogating authorities were completely appropriate, and his statement was coherent in all respects." ( Id.) "Under these circumstances," the appellate court reasoned, "trial counsel may have concluded that a motion to suppress the statement on the ground that defendant was injured and unaware of his surroundings would have been futile." ( Id.)
For this court to second-guess the trial counsel's defense strategy would be an unjustified intrusion on "the constitutionally protected independence of counsel" and "the wide latitude counsel must have in making tactical decisions." Strickland, 466 U.S. at 689. Claim Three does not set forth a basis for concluding that the performance of Bivens' trial counsel was constitutionally deficient.
Claim Three also fails Strickland's second prong in that Bivens cannot show that he was prejudiced by his counsel's failure to move to suppress his confession. To establish prejudice, "[i]t is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding." Id. at 693. Rather, Bivens "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. There is no reasonable basis for believing that Bivens' counsel could have succeeded in suppressing Bivens' confession, Further, in light of the substantial inculpatory evidence apart from the confession, there is no reasonable basis for believing that the confession's suppression would have resulted in Bivens' acquittal.
Conclusion
For these reasons, Bivens' petition for a writ of habeas corpus is denied, and this action is dismissed.