Appeal from the United States District Court for the Southern District of Illinois, Eastern Division. No. 85 C 3079--Gerald B. Cohn, Magistrate.
Cummings and Cudahy, Circuit Judges, and Fairchild, Senior Circuit Judge.
Fairchild, Senior Circuit Judge,
Wayne S. Mikel was convicted in an Illinois court on one count of murder and two counts of aggravated assault for firing a rifle from his co-defendant's pick-up truck on the night of 19 November 1977. The facts are recited in People v. Mikel, 73 Ill. App. 3d 21, 391 N.E.2d 550, 29 Ill. Dec. 287 (4th Dist. 1979). Mikel now appeals the denial of his federal habeas corpus petition; the facts relevant to these claims are discussed only as necessary. We affirm for the reasons stated below.
Upon conviction in Illinois, Mikel pursued a direct appeal where he was represented by appellate counsel different from his trial counsel. Appellate counsel raised ten points of error which the Illinois Court of Appeals considered and rejected in a twelve-page written opinion. Mikel, supra. Proceeding pro se, Mikel filed a petition for writ of habeas corpus in the Illinois Supreme Court.*fn1 The petition raised three issues already pressed on direct appeal, along with seven issues not presented on appeal. The Illinois Supreme Court summarily denied the petition without a hearing and without written opinion. This petition is irrelevant, however, to the requirement of exhaustion of state remedies. Only jurisdictional issues can properly be raised in an Illinois habeas proceeding; it is not deemed a state court remedy available for the federal claims Mikel raised. See Gornick v. Greer, 819 F.2d 160, 161 (7th Cir. 1987); Castille v. Peoples, 489 U.S. 346, 109 S. Ct. 1056, 103 L. Ed. 2d 380 (1989). Although he did allege, in part, that the trial court lacked jurisdiction because the state proceeded by information rather than indictment, this states no federal claim.
Mikel next filed a federal habeas corpus petition pursuant to 28 U.S.C. § 2254, again pro se, and alleged eight claims, only three of which had been raised on his state appeal. The state's answer did not assert lack of exhaustion of state remedies, answered the merits of Mikel's three claims raised on the state appeal, and relied on procedural default as to the claims not raised on appeal. The parties consented to the conduct of proceedings by a magistrate under 28 U.S.C. § 636(c). Counsel was appointed. Reviewing the state court record, Magistrate Cohn denied the petition, finding against Mikel on the merits of the three claims he had raised on his state appeal, finding against him on his claim of ineffective assistance of counsel on that appeal, and finding that his failure to raise the other claims on appeal constituted a procedural default.
On appeal to this court, Mikel argues the three claims pressed on his state court appeal: (1) ineffective assistance of trial counsel due to threats made against counsel by the victim's son; (2) improper photographic identification procedure; and (3) failure to suppress pretrial statements in contravention of defendant's Miranda rights. Mikel also argues five claims not raised on direct appeal: (4) ineffective assistance of appellate counsel; (5) failure to instruct jury on beyond a reasonable doubt standard; (6) lack of jurisdiction because of failure to proceed by indictment; (7) denial of fair trial due to jury's exposure to trial publicity; and (8) illegal arrest without a warrant.
II. EXHAUSTION OF STATE REMEDIES AND THE CLAIM OF INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL
Illinois provides a post-conviction remedy for a person claiming that his or her conviction rests upon the denial of a right under the federal or state constitution. Ill.Rev.Stat. ch. 38, para. 122-1, et seq. Mikel did not use that procedure. Because Illinois courts strictly apply the doctrines of waiver and res judicata in such post-conviction proceedings, it is usually unnecessary for those persons having taken a direct state court appeal to use this post-conviction remedy to satisfy the federal habeas exhaustion requirement. People v. Gaines, 105 Ill. 2d 79, 87-88, 473 N.E.2d 868, 873, 85 Ill. Dec. 269 (1984), cert. denied, 471 U.S. 1131, 86 L. Ed. 2d 282, 105 S. Ct. 2666 (1985), cited in Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060, 1068, 103 L. Ed. 2d 334 (1989) (any claim which could have been raised on appeal, but was not, is deemed waived, while an appellate court's decision on any claim raised is deemed res judicata). Teague also notes that the Illinois rules as to waiver and res judicata may be relaxed where fundamental fairness so requires. Teague, 109 S. Ct. at 1068 (citing People v. Brown, 52 Ill. 2d 227, 230, 287 N.E.2d 663, 665 (1972)).
It is clear enough that an Illinois post-conviction court would have declined to consider Mikel's Claims 1, 2, and 3 on the ground of res judicata and would ordinarily have refused to consider Claims 5, 6, 7, and 8 on the ground of waiver. Our only problem is whether Claim 4, ineffective assistance of appellate counsel, would be treated by an Illinois post-conviction court as a fundamental fairness exception so that the waiver doctrine would not apply to it nor (if Claim 4 were sustained) to Claims 5, 6, 7, and 8. If any claim were not exhausted, then we would generally be required to vacate the denial of the petition and direct that the entire petition be dismissed. Rose v. Lundy, 455 U.S. 509, 71 L. Ed. 2d 379, 102 S. Ct. 1198 (1982).
Claim 4, however, is insubstantial, and a recent Supreme Court decision recognizes that where the state fails to rely on lack of exhaustion, we are free to consider the lack of merit of unexhausted claims. Granberry v. Greer, 481 U.S. 129, 134, 95 L. Ed. 2d 119, 107 S. Ct. 1671 (1987).
To establish ineffective assistance of counsel, a defendant must demonstrate both deficient performance and resulting prejudice. Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). The proper measure of attorney performance is "reasonableness under prevailing professional norms." Id. at 688. "[A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689. Where the claim challenges counsel's performance on appeal, "generally, only when ignored issues are clearly stronger than those presented, will the presumption of effective assistance of counsel be overcome." Gray v. Greer, 800 F.2d 644, 646 (7th Cir. 1986).
Mikel's Claim 4, denial of the effective assistance of counsel on appeal, states only that "counsel on appeal failed to raise issues on appeal that could have gotten the conviction overturned, these issues had been raised at the trial stage." Nothing further is alleged or suggested. Mikel's present appointed counsel filed a brief, but did not address Claim 4. Mikel's pro se brief addresses the claim, but utterly fails to demonstrate that any issue not raised by counsel ...