Petitioner currently premises his petition on the following claims: (1) prosecutorial misconduct, consisting of improper statements made during closing arguments, denied him his constitutional right to a fair trial; (2) the Illinois Habitual Criminal Act is unconstitutional; (3) the Illinois Appellate Court committed a gross miscarriage of justice in violation of petitioner's constitutional right to due process of law; and (4) the Illinois Supreme Court committed a similar miscarriage of justice. Respondents contend the first two arguments have been procedurally defaulted, and, therefore, cannot be considered by this court. Furthermore, respondents claim the final two arguments are meritless.
A. Background Law on Procedural Bars
A state prisoner normally must exhaust all available state judicial remedies before a federal court wilt hear a petition for habeas corpus. Picard v. Connor, 404 U.S. 270, 275, 92 S. Ct. 509, 512, 30 L. Ed. 2d 438 (1971). The exhaustion doctrine, codified in 28 U.S.C. § 2254(b), gives the state the initial opportunity to correct any violations of a prisoner's federal rights. Picard, 404 U.S. at 275, 92 S. Ct. at 512. However, the requirement of state remedy exhaustion applies only to the remedies available at the time the petition is filed. United States ex rel. Johnson v. McGinnis, 734 F.2d 1193, 1196 (7th Cir. 1984). Thus, a petitioner seeking habeas corpus relief that has defaulted his federal claims in the state court system has exhausted his available state remedies because those claims are no longer cognizable in the state court system. Coleman v. Thompson, 501 U.S. 722, 111 S. Ct. 2546, 2555, 115 L. Ed. 2d 640 (1991). Here, respondents concede petitioner has exhausted all of his available state remedies.
The Supreme Court has recognized the problems that are caused when prisoners deliberately default their claims in state court. Coleman, 111 S. Ct. at 2555. In response to potential problematic results, the Court has refused to allow federal courts to consider those claims procedurally defaulted in the state courts when the state court rests its decision on an independent and adequate state ground. Id. at 2553-54. Procedural default can occur in several different ways at almost every stage of the proceedings in state court. United States ex rel. Gladney v. Peters, 790 F. Supp. 1364, 1368-69 (N.D. Ill. 1992). For example, a petitioner will forfeit the right to raise an issue that has not been raised on direct appeal, or on appeal to the state supreme court. Nutall v. Greer, 764 F.2d 462, 464-65 (7th Cir. 1985). Furthermore, a state court's finding of waiver of a claim will act as a procedural bar to federal review if there is an adequate ground independent from federal law for the court's ruling. See Coleman, 111 S. Ct. at 2553-54. With these principles in mind, this court addresses the procedural default arguments advanced by respondents.
B. Prosecutorial Misconduct Issue
Respondents contend that petitioner procedurally defaulted on his claim that he was denied his constitutional right to a fair trial by several allegedly improper statements made by the prosecutor during his closing remarks. Petitioner failed to object to the alleged improprieties at trial or in a post-trial motion, but did raise the issue on direct review. According to Illinois law, however, petitioner was required to object at trial or in a post-trial motion in order to preserve the issue for appellate review. People v. Jackson, 84 Ill. 2d 350, 358-59, 418 N.E.2d 739, 743, 49 Ill. Dec. 719 (1981). The failure to object below to alleged errors may operate as a waiver of the right to consideration of those errors on appeal. People v. Carlson, 79 Ill. 2d 564, 576, 38 Ill. Dec. 809, 404 N.E.2d 233, 38 Ill. Dec. 809 (1980). A federal court reviewing a state court decision is generally bound by a procedural default finding by a state court under its own laws. White v. Peters, 990 F.2d 338, 340 (7th Cir. 1993). However, review of the procedurally barred issue is only foreclosed if the state court's ruling was based on an independent and adequate state law ground for the decision. Coleman v. Thompson, 501 U.S. 722, 111 S. Ct. 2546, 2553-54, 115 L. Ed. 2d 640 (1991). The Supreme Court held in 1989 that federal review was not barred in some instances unless the last state court to rule on the issue "'"clearly and expressly'" states that its judgment rests on a state procedural bar." Harris v. Reed, 489 U.S. 255, 263, 109 S. Ct. 1038, 1043, 103 L. Ed. 2d 308 (1989) (citations omitted). However, the Court later clarified that the failure of the state court to include a clear statement of the grounds does not necessarily create a presumption that the decision is based on federal grounds and is therefore reviewable. Coleman, 111 S. Ct. at 2557 (1991). Instead, "a federal court must first ascertain that the state court decision fairly appears to rest on federal grounds or is interwoven with federal law." Willis v. Aiken, 8 F.3d 556, 561 (7th Cir. 1993) (citing Coleman, 111 S. Ct. at 2557), cert. denied, 114 S. Ct. 1371, 128 L. Ed. 2d 47 (1994).
Under Coleman, the first determination is whether the state court's decision fairly appears to rest on federal grounds. Willis, 8 F.3d at 561 (citing Coleman, 111 S. Ct. at 2557). In this case, the Illinois Appellate Court did not expressly state that procedural default was the sole reason for its rejection of petitioner's appeal. However, it did state that petitioner's claim did not "meet the criteria necessary for review of plain errors." Hartfield, 137 Ill. App. 3d at 687, 484 N.E.2d at 1141. This finding was based on Illinois Supreme Court Rule 615(a), which provides for plain errors to be noticed when the evidence is closely balanced or a gross injustice has occurred, denying the petitioner a fair trial. 87 Ill. 2d Rule 615(a). The court found neither closely balanced evidence nor improprieties sufficient to justify notice of a plain error on review. Hartfield, 137 Ill. App. 3d at 687, 484 N.E.2d at 1141. Additionally, the court noted that the arguments were not improper, or alternatively, if improper, the closing remarks were harmless error. Id. at 687-88, 484 N.E.2d at 1141-42. Nowhere in its discussion of petitioner's plain error argument did the appellate court invoke any federal law in support of its denial of the contention. Conversely, the appellate court couched its discussion of the propriety of the remarks or their harmlessness in terms of state law. Id. Accordingly, the state decision does not fairly appear to rest on federal grounds, and the court is foreclosed from reviewing it unless petitioner can demonstrate cause and prejudice or a gross miscarriage of justice discussed below.
C. Constitutionality of the Illinois Habitual Criminal Act
Respondent further argues petitioner has procedurally defaulted his claim that the Illinois Habitual Criminal Act, 720 ILCS 5/33B-1 through 5/33B-3, is unconstitutional. Respondents contend that petitioner waived his right to review of this federal claim by not raising it in his petition for leave to appeal to the Illinois Supreme Court. The court agrees.
In Nutall v. Greer, 764 F.2d 462 (7th Cir. 1985), the Seventh Circuit held a federal court was precluded from reviewing a claim that had not been brought in the state court system. Id. at 465. The court found a petitioner can waive his right to habeas review by falling to include the claim in his direct appeal, or by failing to seek leave to present that claim to the state supreme court. Carrying this analysis further, a district court has ruled that a petitioner waives his right to habeas review if he includes a claim on direct appeal, but excludes it in his petition for leave to appeal to the state's highest court. Id. Petitioner did not seek leave to present this claim to the Illinois Supreme Court. Accordingly, petitioner is not entitled to review of this issue unless he can show either "cause and prejudice" for his failure or that a denial will be a gross "miscarriage of justice." These exceptions are discussed below.
D. Overcoming Procedural Default
A petitioner is able to avoid preliminary denial of a habeas claim otherwise barred by procedural default in two ways. First, he may demonstrate that there was cause for the default and resulting actual prejudice. Alternatively, a petitioner can show a miscarriage of justice has occurred because of the constitutional violations.
1. Cause and Prejudice