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December 15, 1989

PHILLIP T. HARDIMAN, Executive Director of the Cook County Department of Corrections; RICHARD ELROD, Sheriff of Cook County; and MICHAEL LANE, Director Department of Corrections, State of Illinois, Defendants

The opinion of the court was delivered by: ASPEN


 Lonnie Yates is a state prisoner who was found guilty of murder and burglary in the Circuit Court of Cook County, Illinois. In November 1984, Yates filed a petition for habeas corpus pursuant to 28 U.S.C. § 2254. The case was originally assigned to Judge George N. Leighton, who granted Yates' motion for summary judgment on the petition. 656 F. Supp. 1006. The Seventh Circuit reversed this judgment and remanded the case for a consideration of the remaining issues raised in the original petition. 830 F.2d 195. For the reasons set forth below, we deny Yates' petition for habeas corpus.


 On the morning of July 11, 1977, Veronica Lee was bludgeoned and stabbed to death. Her cousin Timothy Lee found her naked body stuffed in a closet with a pair of scissors embedded in her chest. Veronica's wallet was found with its contents strewn about a cocktail table; her mother testified that seventeen dollars was missing. Lonnie Yates was subsequently charged with and found guilty of murder and burglary. *fn1"

 Yates' first remaining claim is that the trial court violated his Sixth and Fourteenth Amendment right to present a defense by refusing to admit a composite sketch into evidence. The sketch was drawn under the direction of two witnesses to the crime, who testified during the trial that they saw Yates leaving the victim's apartment just before the body was discovered. According to Yates, he does not resemble the individual depicted in the sketch. The state court ruled that the composite was inadmissible hearsay.

 Yates also claims that he was denied his Fourteenth Amendment due process right because of remarks made by the prosecutor during closing argument. Specifically, Yates points to the "unsupported, inflammatory argument" that he had sexually assaulted Veronica Lee prior to murdering her.


 In order to prevail on a petition for habeas corpus, it is not enough that the petitioner presents meritorious constitutional claims. He must also clear certain procedural hurdles. We find that Yates has failed to satisfy the procedural prerequisites for a § 2254 action and deny the petition for habeas relief.

 Yates claims that he was denied his Sixth Amendment right to present a defense when the trial court refused to admit a composite sketch into evidence. On appeal to the Illinois Supreme Court, Yates challenged the trial court's refusal to admit the sketch into evidence, arguing that the sketch could not be hearsay because it was to be used only to impeach the identification witnesses. However, Yates did not raise his constitutional claim on appeal.

 "The failure of a person convicted in a state court to raise a federal claim on his state appeal is a procedural default which bars that claim from being considered on federal habeas unless the person can show 'cause and prejudice.'" Mikel v. Thieret, 887 F.2d 733, 737 (7th Cir., 1989) (citations omitted). A state court is entitled to a fair opportunity to consider a federal claim before a federal court can consider the claim by means of a habeas petition. Dortch v. O'Leary, 863 F.2d 1337, 1343 (7th Cir. 1988), cert. denied, 490 U.S. 1049, 109 S. Ct. 1961, 104 L. Ed. 2d 429.

 It is clear that Yates deprived the Illinois Supreme Court of the opportunity to consider his federal claim during his direct appeal to that court. Yates did appeal the trial court's evidentiary ruling to exclude the sketch. However, he failed to raise his Sixth Amendment claim on appeal. His argument dealt exclusively with the validity of the ruling under the Illinois law of evidence. Nowhere in the court's opinion is the slightest indication that Yates framed his argument in constitutional terms. People v. Yates, 98 Ill.2d 502, 456 N.E.2d 1369, 1381-1383, 75 Ill. Dec. 188 (1983).

 Because Yates neglected to raise the constitutional claim in state court proceedings, he can only raise the issue in a habeas proceeding if he satisfies the "cause and prejudice" standard. Mikel, 737. However, Yates has not shown cause for his default or actual prejudice resulting from the errors of which he complains. He had every opportunity, but failed to raise the constitutional issue on appeal. Furthermore, as noted by the Illinois Supreme Court, Yates "has not shown any substantial prejudice" as a result of the trial court's decision to exclude the composite. Id. at 1383. "Defense counsel extensively cross-examined the witnesses with the use of the sketch and repeatedly advised the jury of the asserted discrepancies between the sketch and the defendant." Id. "Admission of the sketch would have added little, if any, to the probative value of the attempted impeachment, and we cannot conceive that it would have ...

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