attempts to develop the state court record regarding her trial lawyers' failure." In particular, Jones argues that the trial court should not have admitted post-trial statements of Dr. Freese (that he had spoken with Jones' trial attorneys about the effects of a torn umbilical cord), without giving her the opportunity to cross examine Dr. Freese or to rebut his statements. In addition, Jones argues that she was prejudiced as a result of the decision to admit Dr. Freese's statements since the appellate court relied on those statements in finding that Jones was not denied effective assistance of counsel.
In order to be entitled to a federal evidentiary hearing, Jones must show cause for her failure to fully develop the facts in the state court proceedings and must demonstrate actual prejudice resulting from that failure. Keeney v. Tamayo-Reyes, 118 L. Ed. 2d 318, 112 S. Ct. 1715, 1721 (1992). In addition, Jones' failure to develop a claim will be excused and a hearing mandated only if she can show that a fundamental miscarriage of justice would result from her failure to hold a federal evidentiary hearing. Id.
Generally, for a petitioner to establish "cause," he or she must demonstrate that some external impediment prevented counsel's efforts to develop the evidence. McCleskey v. Zant, 499 U.S. 467, 113 L. Ed. 2d 517, 111 S. Ct. 1454, 1470 (1991); Jernigan, 980 F.2d at 297; U.S. ex rel. Free v. Peters, 806 F. Supp. 705, 710 (N.D.Ill. 1992). That is not the case here. Jones argues that the trial court erred in deciding to admit Dr. Freese's post-trial statements without providing her with the opportunity to cross examine Dr. Freese or to rebut his statements. It was not some "external impediment" that prevented Jones from developing evidence to support her ineffectiveness claim (that is, that her attorneys did not know about the effects of a torn umbilical cord), but it was the trial court's decision to allow Dr. Freese's sworn statement into evidence and to deny the admission of other post-trial statements. As a federal habeas court, it is our role to look for constitutional error and not, as in this case, to overturn either the factual or legal conclusions reached by the state court. Keeney, 112 S. Ct. at 1719.
In addition, Jones has not (and cannot) establish that a "fundamental miscarriage of justice would result from failure to hold a federal evidentiary hearing." To show a fundamental miscarriage of justice Jones would have to demonstrate by clear and convincing evidence that, but for a constitutional error, no reasonable trier of fact would have found her guilty. Jernigan, 980 F.2d at 297. As noted by the trial court, even if the evidence about the effects of the torn umbilical cord had been presented to the court, it would not have changed the court's conclusion. The state presented evidence which directly contradicted the theory that the baby bled through the umbilical cord and that the baby appeared dead to Jones. Thus, even assuming Jones' new mitigating evidence was presented at trial, it does not show that a reasonable trier of fact would not have found her guilty. Jones' request for a federal evidentiary hearing is therefore denied.
For the reasons stated above, we deny Jones' writ of habeascorpus and her request for a federal evidentiary hearing. We suggest that defendant's most persuasive contention, the length of the sentence, is one that cannot be addressed by this court but can be addressed in a petition for clemency. At the time Jones gave birth she was nineteen years old and lived in a three-bedroom apartment with eleven other people. She had dropped out of high school and had a limited education. When she gave birth, Jones was undoubtedly under considerable stress, since she was alone in the bathroom of her mother's apartment and no one knew that she was pregnant. Jones did not have a previous criminal record and, during the trial, was portrayed by her family and friends as a shy teenager who cared deeply for her son Darryl. In her sentencing, Jones' counsel requested the minimum sentence for murder of twenty years. The trial court sentenced Jones to concurrent prison terms of thirty-four years for murder and five years for concealment of a homicide. Jones has now been incarcerated for over nine years. We do not know what her institutional adjustment has been. The circumstances of the offense and defendant's subsequent adjustment may well merit executive review.
JAMES B. MORAN,
Chief Judge, U.S. District Court
September 9, 1993.