statements, as long as the prosecutor is genuinely surprised by the denial or if he or she actually questioned the witness for the purpose of impeachment.
The similarities in the necessary factual inquiries and legal theories between what was included in the state court appeal and the present habeas petition are simply not strong enough for this court to conclude that the Illinois appellate court was "alerted" to the due process issue by White's attempted state court appeal. The state court in this case was far less "alerted" to the federal issues than the state appellate court in United States ex. rel. Holleman v. Duckworth, 770 F.2d 690 (7th Cir. 1985). In Holleman, the petitioner was a prisoner who was transferred from a prison in Indiana to Illinois to stand trial. He was found guilty in the Illinois trial. In his direct appeal of the conviction, Holleman argued that post-transfer delays in holding his trial violated the Illinois Speedy Trial Act and that pre-transfer delays in holding his trial violated the Interstate Agreement on Detainers ("IAD") (Ill.Rev.Stat. ch. 38, § 1003-8-9 (1983)). In his habeas appeal, he argued that post-transfer delays violated the IAD.
The Seventh Circuit reversed the district court which had found that his direct appeal gave the Illinois appeals court "elaborate notice that Holleman had a valid IAD claim." Id. at 692. Despite substantial similarities in the legal theories and complete overlap in necessary facts, the Seventh Circuit ruled that the state court had not been alerted to the possibility that Holleman's post-transfer delay violated the IAD. Indeed, as the Supreme Court has stated "it is not enough that all the facts necessary to support the federal claim were before the state courts, or that a somewhat similar state-law claim was made." Anderson v. Harless, 459 U.S. 4, 6, 74 L. Ed. 2d 3, 103 S. Ct. 276 (1982) (per curiam) (citations omitted).
White has offered no excuse providing him "cause and prejudice" for his failure to raise the constitutional implications of the state evidentiary issue he brought on appeal. Even if the court could find cause and prejudice to excuse White's failure to have drafted a complete written motion for a new trial, such a finding would not excuse him for omitting the due process argument from his appeal. See United States ex. rel. Sullivan v. Fairman, 731 F.2d 450 (7th Cir. 1984).
White's Other Arguments Have Been Defaulted
In his petition for leave to appeal to the Illinois Supreme Court, White presented only the argument that the use of a witness merely to impeach her was reversible error. Under Illinois law, a party seeking to appeal to the Illinois Supreme Court must include in his petition for leave to appeal "a statement of the points relied upon for reversal of the judgment of the Appellate Court." Supreme Court Rule 315(b)(3), Ill.Rev.Stat., ch. 110A, P315(b)(3). Failure to include issues in the petition for leave to appeal operates as a waiver of those issues. See People v. Anderson, 112 Ill. 2d 39, 43-44, 96 Ill. Dec. 58, 490 N.E.2d 1263 (1986). Therefore, White's failure to raise the other issues in his petition to the Illinois Supreme Court defaults them for purposes of review under § 2254, see Nutall v. Greer, 764 F.2d 462, 465 (7th Cir. 1985), unless he can demonstrate both cause and prejudice for the default. See Wainwright v. Sykes, 433 U.S. 72, 53 L. Ed. 2d 594, 97 S. Ct. 2497 (1977).
White could have argued in his petition to the state supreme court that the retroactive application of the rule announced in Enoch violated due process. He failed to make that argument, however, and it is therefore procedurally defaulted. This court emphasizes that in the previous section it considered whether Enoch effected a significant enough change in the law to give White "cause" for failing to preserve his due process argument based on the arguably substantive use of Gilbert's prior inconsistent statements. See Vogel v. Percy, 691 F.2d 843 (7th Cir. 1982). Whether Enoch's modification of the law excused White's default of his Vogel v. Percy argument is an entirely different question from whether the appellate court's decision to follow Enoch amounted to an unconstitutional retroactive application of a change in the law.
White also argues that Illinois' rule for preservation of issues on appeal violated due process. He correctly points out that under the federal constitution, direct appeal of a criminal conviction is guaranteed as a matter of right. See Griffin v. Illinois, 351 U.S. 12, 100 L. Ed. 891, 76 S. Ct. 585 (1956); Evitts v. Lucey, 469 U.S. 387, 83 L. Ed. 2d 821, 105 S. Ct. 830 (1984). White contends that by requiring criminal defendants both to make a timely objection at trial and include the objection in a written post-trial motion for a new trial, Illinois has unconstitutionally burdened a criminal defendant's right to direct appeal. Again, this issue was never raised by White until his petition for habeas corpus. He did not make the argument to the Illinois appellate court on rehearing or in his petition for leave to appeal to the Illinois Supreme Court. He has therefore defaulted on the argument and this court can not consider it.
Whites's other two arguments, that the evidence was insufficient to convict and that the prosecutor improperly alluded to White's failure to testify are clearly waived. Although properly preserved in his direct appeal to the Illinois appellate court, those arguments were abandoned in White's appeal to the Illinois Supreme Court. He has offered no "cause and prejudice" arguments to excuse their omission. Those two issues are therefore procedurally defaulted.
Respondent's motion to deny the petition is granted.
BRIAN BARNETT DUFF, JUDGE
UNITED STATES DISTRICT COURT
DATE: FEB 18 1992