habeas petition, he presents three arguments: (1) that he was denied effective assistance of counsel; (2) that the counsel for the prosecution made improper remarks during his closing argument; and (3) that the trial court's jury instructions on murder and voluntary manslaughter denied him due process of law guaranteed by the Fourteenth Amendment. The court will address each of Riggins' arguments respectively.
Before the court may reach the merits of a petition for a writ of habeas corpus, it must first ascertain whether the petitioner has met two distinct procedural requirements. Jones v. Washington, 15 F.3d 671, 674 (7th Cir. 1994), cert. denied, No. 93-8975, 1994 WL 194941 (U.S. June 17, 1994). The first requirement is that of exhaustion. 28 U.S.C. § 2254(b); Harris v. Champion, 15 F.3d 1538, 1554 (7th Cir. 1994). Under this requirement, the petitioner must exhaust all possible state remedies before he or she may file a petition for a writ of habeas corpus. Johnson v. Gilmore, No. 93 C 4082, 1994 WL 283042, at *1 (ND. Ill. June 20, 1994).
The second requirement is that of fair presentment of constitutional issues. Jones, 15 F.3d at 674. Under this requirement, the petitioner must have raised the claims made in his petition in the state court proceedings. Picard v. Connor, 404 U.S. 270, 278, 30 L. Ed. 2d 438, 92 S. Ct. 509 (1971). This prerequisite to federal habeas review is designed to preserve the balance of the dual system of government by providing the state courts the first opportunity to remedy a constitutional violation. Duckworth v. Serrano, 454 U.S. 1, 4, 70 L. Ed. 2d 1, 102 S. Ct. 18 (1981). Failure to satisfy both requirements results in procedural default and denial of the petition. Henderson v. Thieret, 859 F.2d 492, 496 (7th Cir. 1988), cert. denied, 490 U.S. 1009, 104 L. Ed. 2d 163, 109 S. Ct. 1648 (1989).
Riggins claims that at the time of his criminal trial for the charges of murder and armed violence, he was denied effective assistance of counsel. In support, he states that at trial the arresting officer testified that he recovered a driver's license from Riggins with his name on it. Riggins informed his trial attorneys that the arresting officer was lying on the stand because he did not have a license at the time of the arrest. Riggins further explained that he was driving while on probation for driving with a revoked license. Given this information, Riggins charges that his attorneys should have cross examined the arresting officer in order to impeach him.
Riggins' ineffective assistance of counsel claim, however, is procedurally defective and, thus, it must fail. Respondents Kenneth R. McGinnis and Roland Burris, the Attorney General of the State of Illinois (collectively "government") point out that Riggins never raised the ineffective assistance of counsel claim in the state appellate proceeding. Riggins raised the following issues on direct appeal to the Illinois Appellate Court: (1) whether the trial court erred in denying Riggins' motion for directed verdict after the closing of the government's case in chief; (2) whether the jury instructions on murder and voluntary manslaughter misallocated the prosecution's burden of disproving the existence of a mitigating mental state; and (3) whether the court erred in permitting the government to impeach Riggins on matters collateral to the substantive issues in the trial and matters outside the scope of his direct examination. People v. Riggins, 205 Ill. App. 3d 904, 564 N.E.2d 122, 148, 150-51, 151 Ill. Dec. 145 (Ill. App. Ct. 1990), appeal denied, 567 N.E.2d 339 (Ill. 1991). Indeed, Riggins failed to raise the claim of ineffective assistance of counsel on direct appeal. In addition, he does not argue otherwise. Thus, Riggins' claim of ineffective assistance of counsel is barred by a procedural default.
Riggins next claims that because of prosecutorial misconduct he was denied due process when the prosecutor called him a "dope dealer" during closing argument. This claim, like the ineffective assistance claim, is barred by the procedural default. He did not raise the issue on direct appeal. In his habeas petition, however, Riggins explains that the prosecutorial misconduct issue was not presented on direct appeal because his attorneys believed that it was at best a harmless error.
To demonstrate cause for a procedural default, "the prisoner [must] show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule." Murray v. Carrier, 477 U.S. 478, 488, 91 L. Ed. 2d 397, 106 S. Ct. 2639 (1986). The standard requires more than a mere showing that the prisoner did not deliberately abandon or intentionally exclude the claim from earlier proceedings. McCleskey v. Zant, 499 U.S. 467, 111 S. Ct. 1454, 1468, 113 L. Ed. 2d 517 (1991). The analysis focuses on the conduct of the prisoner to determine whether he has a legitimate excuse for failing to assert the claim on direct appeal. Id. After the prisoner establishes cause, he must then show actual prejudice resulting from the cause. Id. Show of one factor without the other is inadequate to escape the procedural bar. Id. at 1474.
Riggins' appellate strategy, however, is not an external factor which impeded his counsel from raising the issue. To the contrary, Riggins' counsel at the time of his direct appeal deliberately abandoned the issue. See generally Murray, 477 U.S. at 488. Therefore, the prosecutorial misconduct claim is barred by the procedural default.
Lastly, Riggins contends that the trial court violated his constitutional right to due process when it gave the Illinois Pattern Jury Instructions ("IPI") 7.02
on murder and 7.04
voluntary manslaughter in that order. Unlike the other two claims Riggins asserts in his § 2254 petition, the Illinois Appellate Court did consider his challenge to the jury instructions on direct appeal. See Riggins, 564 N.E.2d at 127. Riggins contended that the IPIs given to the jury at his trial misallocated the State of Illinois' ("State") burden to disprove the existence of a mitigating mental state in violation of People v. Reddick, 123 Ill. 2d 184, 526 N.E.2d 141, 122 Ill. Dec. 1 (Ill. 1988).
The Illinois Appellate Court agreed with Riggins that giving of the subject IPI to the jury at his trial was an error pursuant to Reddick. Nonetheless, the Illinois Appellate Court concluded that reversal of the conviction was not required under Illinois law because the erroneous instructions amounted to nothing more than a harmless error. In reaching this conclusion, the Illinois Appellate Court emphasized the strength of the State's evidence against Riggins and against the claim of self-defense:
We believe that the record, when viewed as a whole, demonstrates that defendant could not have feared for his life, not even unreasonably. Defendant failed to produce sufficient evidence to prove that he either reasonably or unreasonably believed that he was in danger and therefore, has failed to demonstrate the mitigating mental condition of voluntary manslaughter required to shift the burden of disproving his belief to the State.