murder, which necessitates a finding that the petitioner believed that he was justified in using force against Gilbert. This verdict indicates that the admission of that statement did not affect the petitioner's defense.
In addition, as the Illinois Appellate Court noted, the admission of the petitioner's answer of "no" did not destroy his theory of self-defense. "Obviously if it was in self-defense, the shooting was not an accident." Bosek, 210 Ill. App. 3d at 600, 569 N.E.2d at 569. Lastly, substantial evidence beyond the admitted statements existed to support the jury's verdict. These factors considered, a reasonable probability does not exist that but for the admission of the statements, the result of the trial would have been different.
In sum, none of the errors that the petitioner claims his trial counsel made, nor the combined effect of them, indicates that trial counsel's representation of the petitioner was constitutionally defective. Consequently, this court rejects the petitioner's claim of ineffective assistance of counsel.
C. Overcoming procedural default
The petitioner contends that this court should consider his claims despite his procedural defaults because he has overcome any defaults. However, this court agrees with the Magistrate Judge that the petitioner has not shown cause for or prejudice from his defaults, or that a miscarriage of justice resulted from the constitutional violations he claims occurred.
1. "Cause and prejudice"
A petitioner can be relieved from the effects of procedural default by showing cause for the default, as well as actual prejudice from it. Wainwright v. Sykes, 433 U.S. 72, 84, 87, 97 S. Ct. 2497, 2504, 2506, 53 L. Ed. 2d 594 (1977); Murray v. Carrier, 477 U.S. 478, 492, 106 S. Ct. 2639, 2647, 91 L. Ed. 2d 397 (1986). "Prejudice" means that a "reasonable probability" exists that if the petitioner had appealed or otherwise had not defaulted, he would have won. See Belford v. United States, 975 F.2d 310, 314 (7th Cir. 1992). To show "cause," a petitioner generally must show that some objective factor external to the defense impeded counsel's efforts to comply with a procedural rule or prevented counsel from constructing or raising a claim. Carrier, 477 U.S. at 488, 492, 106 S. Ct. at 2645, 2647. Under this definition, ineffective assistance of counsel constitutes cause for a procedural default that occurred as a result of counsel's constitutionally deficient performance. Carrier, 477 U.S. at 488, 106 S. Ct. at 2645. A claim of ineffective assistance of counsel, however, must be presented to the state courts as an independent claim before it may be used to establish cause for a procedural default. Carrier, 477 U.S. at 489, 106 S. Ct. at 2646.
This court has concluded that the petitioner procedurally defaulted on his claims that he was deprived of his right to due process when the trial court failed to instruct the jury on the presumption of innocence and burden of proof on second degree murder, and that his right to due process was violated by the State's presentation into evidence of his alleged prior violent conduct in beating his son years earlier. The petitioner claims that procedural default of these two claims was caused by his trial counsel's ineffective assistance of counsel. However, this court has found that the petitioner's counsel's performance was not constitutionally ineffective. Therefore, the petitioner has not shown cause for these defaults.
In the absence of a showing of cause, prejudice need not be determined. See MacDougall v. McCaughtry, 951 F.2d 822, 825 (7th Cir. 1992). However, our finding that trial counsel did not err also would support a lack of prejudice. That is, even if counsel had made the objections that the petitioner argues he should have made, the outcome of the case most likely would be no different, since the trial court most likely would have overruled the objections. Accordingly, the "cause and prejudice" exception to procedural default cannot save the petitioner's claims.
2. "Miscarriage of justice"
In the "extraordinary case" where a fundamental miscarriage of justice has resulted in an unjust incarceration, a federal court may grant a writ of habeas corpus even in the absence of a showing of cause for the procedural default. Carrier, 477 U.S. at 495-96, 106 S. Ct. at 2649. In such a case, the petitioner must show that a constitutional violation probably has resulted in the conviction of an innocent person. Id.
This court now essentially has had the opportunity to address the merits of four of the petitioner's claims, two of which the petitioner procedurally defaulted but which were encompassed in his ineffective assistance of counsel argument. Given the conclusions that the petitioner's counsel was not ineffective and that petitioner was not deprived of his rights to due process and a fair trial when the trial court rejected his instruction regarding the victim's aggressive character, as well as that sufficient evidence was presented at trial to support the petitioner's conviction of second degree murder, this court cannot find that a fundamental miscarriage of justice has resulted in the conviction of an innocent person. For this reason, the petitioner has not overcome his procedural defaults, and this court cannot consider these defaulted claims.
For the reasons set forth above, the petitioner's petition for a writ of habeas corpus is denied.
Date: NOV 03 1993
JAMES H. ALESIA
United States District Judge