Appeal from the United States District Court for the Southern District of Illinois, East St. Louis Division, No. 85 C 3039 -- Gerald B. Cohn, Magistrate.
Cummings, Ripple and Manion, Circuit Judges.
Petitioner Leon Washington, an inmate at the Menard Correctional Center in Illinois, filed a habeas corpus petition in the district court. The parties consented to have the matter heard by United States Magistrate Cohn. He denied the petition on August 7, 1986, and subsequently granted a certificate of probable cause pursuant to Rule 22(b) of the Federal Rules of Appellate Procedure. We affirm the magistrate's denial of Washington's habeas corpus petition.
On June 6, 1981, Washington fatally shot James Riordan, First Deputy Superintendent of the Chicago Police Department. The shooting occurred in a corridor of the Marina City restaurant in Chicago. Prior to Riordan's arrival at the restaurant that night, Washington had been harassing patrons in the bar area. When Riordan arrived, he and his companion, en route to the restaurant area, stopped in the lounge to talk to a married couple they knew. Washington approached the foursome, grabbed the wife, held a gun to her head and pulled the trigger three times. The gun merely clicked; it did not fire.
Riordan and the husband grabbed Washington and walked him away from the wife. Once away from the area, Riordan released Washington who thereupon entered the cloak room. When he emerged, Riordan attempted to escort him to the exit. In the corridor of the restaurant on the way out Riordan demanded Washington's gun and attempted to grab it. Washington pushed Riordan back and pulled the trigger four times. Unlike the earlier incident this time the gun, apparently loaded in the cloak room, fired four bullets; three hit Riordan, two in the chest and one in the neck. He died from these bullet wounds shortly after midnight.
After a jury trial, Washington was found guilty of murder and sentenced to 35 years in prison. On appeal before the Appellate Court of Illinois Washington raised twelve points, all of which were rejected by that court. People v. Washington, 121 Ill. App. 3d 479, 459 N.E.2d 1029, 76 Ill. Dec. 894 (1st Dist. 1984). In a thorough opinion, Justice O'Connor affirmed the judgment of the Circuit Court of Cook County.
Washington then sought leave to appeal in the Illinois Supreme Court. He abandoned ten of the twelve issues he had raised in the Appellate Court and raised only the following two before the Illinois Supreme Court: (1) that the trial court refused an intoxication instruction even though there was allegedly some evidence to show that Washington was intoxicated, and (2) that in alleged violation of an Illinois statute Judge Bailey, whom Washington had substituted out of the case for bias, ruled on a subsequent motion to substitute out his replacement, Judge Mahon, for prejudice. The Supreme Court of Illinois denied the petition for leave to appeal on April 3, 1984.
Washington subsequently filed a habeas corpus petition in the district court. In his petition he raised the two issues he had raised before the Supreme Court of Illinois, but also revived the other ten issues that were decided against him by the Appellate Court of Illinois and that he had abandoned before the Illinois Supreme Court. After considering each of the twelve issues, the magistrate denied Washington's petition.
On appeal before this Court, Washington raises only four of the twelve issues: (1) whether the trial court should have granted a continuance in view of pretrial publicity in order to obtain an impartial jury; (2) whether Judge Bailey, substituted for bias, should not have been permitted to pass upon Washington's motion to substitute for bias Judge Mahon, who had succeeded Judge Bailey as the trial judge; (3) whether two jurors should have been excused for cause; and (4) whether prosecutorial misconduct prevented a fair trial.
Forfeiture of Three of Four Issues Appealed
Respondent Warden contends that Washington has forfeited federal habeas review of the last three of the four issues on appeal because he failed to present a federal constitutional claim in the state courts with respect to them. As to the second issue, on appeal in the state courts Washington's attack on Judge Mahon's bias and on Judge Bailey's refusal to substitute Judge Mahon rested on state statute and state court authority. The only reference to a constitutional violation was a "see also" reference to some Supreme Court cases and was plainly insufficient to alert the Illinois appellate court to consider any federal constitutional error. Consequently that court decided the matter on state statute and Illinois case law and the issue is therefore foreclosed here.*fn1
As to the third and fourth issues on appeal, Washington's arguments in state court did not invoke the federal constitution and the appellate court's decision on both issues rested solely on state law. People v. Washington, 121 Ill. App. 3d 479, 459 N.E.2d 1029, 1035, 1038, 76 Ill. Dec. 894 (1984).
We conclude that Washington forfeited his right to present all but the first claim he attempts to raise on appeal because his other constitutional claims had not been presented to the state courts as required by Anderson v. Harless, 459 U.S. 4, 6-7, 74 L. Ed. 2d 3, 103 S. Ct. 276, Picard v. Connor, 404 U.S. 270, 275-276, 30 L. Ed. 2d 438, 92 S. Ct. 509, and United States ex rel. Sullivan v. Fairman, 731 F.2d 450, 453 (7th Cir. 1984). Moreover, since no cause and prejudice was shown for failure to present a federal constitutional question in state court except with respect to the continuance ...