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UNITED STATES EX REL. SHEPHERD

April 18, 1994

UNITED STATES OF AMERICA, ex rel. CHARLES SHEPHERD, Petitioner,
v.
GEORGE WELBORN, Warden, and ROLAND BURRIS, Attorney General of the State of Illinois, Respondents.


ALESIA


The opinion of the court was delivered by: JAMES H. ALESIA

Now before the court is a petition for a writ of habeas corpus submitted by the petitioner, Charles Shepherd. Shepherd alleges that the State of Illinois violated the Sixth Amendment of the United States Constitution by denying Shepherd effective assistance of counsel. Shepherd alleges that counsel represented him ineffectively because counsel failed to object to state action which Shepherd characterizes as violative of the Fourth and Fourteenth Amendments. In addition to counsel's failure to object to perceived constitutional violations, Shepherd alleges that counsel's representation in general was ineffective and constituted a Sixth Amendment violation. For the reasons set forth below, the court finds Shepherd's arguments groundless and hereby denies his petition.

 I. STATEMENT OF FACTS

 The petitioner, Charles Shepherd, was convicted of first degree murder and armed robbery. Shepherd stabbed James Clark to death, after the two of them had driven to a currency exchange where Clark cashed a check. *fn1" Shepherd stabbed Clark in the chest and then in the back. (Trial Transcript at 608) ("Tr. Tran."). After the killing, Shepherd returned to Clark's car, retrieved a bag of cocaine belonging to Clark and ingested it. Id. at 613. Shepherd confessed to the police that he killed Clark, yet he claimed that he killed him in self-defense. (Memorandum in Support of Petition for Habeas Corpus, at 7 ("Mem. in Supp.")). The jury disagreed and convicted him.

 II. DISCUSSION

 A. Exhaustion

 An inmate must exhaust state remedies before petitioning a federal court for a writ of habeas corpus. 28 U.S.C. ยง 2254(b) (1988). Typically, a petitioner exhausts state remedies by presenting the claim to the highest state court. United States ex rel. Simmons v. Gramley, 915 F.2d 1128, 1132 (7th Cir. 1990). From the record, it is not clear whether Shepherd appealed to the Illinois Supreme Court after the appellate court affirmed his conviction. In his petition for habeas corpus, Shepherd contends that he appealed his conviction to the Illinois Supreme Court. (Pet. at 4). Yet he does not provide any documentation substantiating this allegation. Moreover, the memorandum of one of the public defenders who represented Shepherd suggests otherwise. In her "Motion to Withdraw as Counsel under Pennsylvania v. Finley, 481 U.S. 551, 107 S. Ct. 1990, 95 L. Ed. 2d 539 (1987)", Shepherd's public defender included a "Statement of Facts" which makes no mention of the alleged appeal to the Illinois Supreme Court:

 
Defendant's conviction was affirmed on direct appeal. (No. 89-0673, First District, Sixth Division) Petitioner filed a pro se post-conviction petition. (C.13-26) The trial court dismissed the petition as frivolous within 30 days. (C.12).

 (Mem. in Supp., Ex. C). Had Shepherd appealed his conviction to the Illinois Supreme Court, it would seem that the public defender would have mentioned it in her synopsis of the procedural history. Moreover, the court has been unable to locate any evidence of such an appeal.

 However, even if Shepherd did not appeal to the Illinois Supreme Court, he has nonetheless exhausted his state remedies. A petitioner has exhausted his remedies if the time period within which the petitioner could have appealed has expired. Gramley, 915 F.2d at 1132. In the instant case, the Illinois Appellate Court affirmed his conviction in 1991. (Mem. in Supp., Ex. E). Id. To appeal to the Illinois Supreme Court, Shepherd was required to file the appeal for the affirmance of his conviction within 21 days. Ill. Sup. Ct. R. 315(b) (formerly ILL.REV.STAT. ch. 110A P 315). As Shepherd filed this petition on December 4, 1993, he has exceeded the time limit to appeal to the Illinois Supreme Court and has exhausted his remedies.

 Furthermore, a petitioner exhausts state remedies by fairly presenting the claim to the Illinois judiciary and affording it adequate opportunity to address the merits of the claim. United States ex rel. Partee v. Lane, 926 F.2d 694, 699-700 and n.3 (7th Cir. 1991), cert. denied, 117 L. Ed. 2d 464, 112 S. Ct. 1230 (1992). A petitioner may afford the state of Illinois adequate opportunity by appealing the conviction to the Illinois Appellate Court and subsequently seeking post-conviction relief through the Illinois Supreme Court. Farrell v. Lane, 939 F.2d 409, 410-11 (7th Cir.), cert. denied, 112 S. Ct. 387, 116 L. Ed. 2d 337 (1991). In the instant case, Shepherd appealed his conviction to the Illinois Appellate Court, filed for post-conviction relief, and then appealed the dismissal of this petition to the Illinois Appellate and Supreme Courts. Under Farrell, Shepherd has exhausted his state remedies.

 B. Procedural Default

 In addition to exhausting all state remedies, a petitioner must avoid procedural default. Wainwright v. Sykes, 433 U.S. 72, 90-91, 97 S. Ct. 2497, 2508-09, 53 L. Ed. 2d 594 (1977); Gramley, 915 F.2d at 1132. If the petitioner neglects to raise an issue to the state, that issue is procedurally defaulted and cannot be raised in federal court. Id., 97 S. Ct. at 2508-09. A recent Seventh Circuit decision governs the instant case and compels a finding that Shepherd did not procedurally default. Jones v. Washington, 15 F.3d 671 (7th Cir. 1994). In Jones, the petitioner raised an issue on post-conviction review that he had not raised previously. The Seventh Circuit held that although Jones neglected to raise this issue in his direct appeals to the Illinois courts, he avoided procedural default by raising it in his post-conviction proceedings. Similarly here, ...


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