The opinion of the court was delivered by: CHARLES RONALD NORGLE, SR.
CHARLES R. NORGLE, SR., District Judge:
Before the court is Jasper Johnson's ("Johnson") pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons stated below, the petition is denied.
Johnson was convicted of murder and sentenced to prison for fifteen to forty-five years by the Circuit Court of Cook County on August 2, 1974. The Illinois Appellate Court affirmed his conviction in 1976. People v. Johnson, 42 Ill. App. 3d 425, 355 N.E.2d 699 (Ill. App. Ct. 1976). In his habeas petition, Johnson claims that he was twice denied leave to appeal to the Illinois Supreme Court. Furthermore, Johnson contends that he filed a motion for relief from judgment, pursuant to Ill. Rev. Stat. ch. 110, para. 72 (1975), and a post-conviction petition. Both filings were denied.
In July 1993 Johnson filed this petition for a writ of habeas corpus. The petition presents the following twelve grounds for relief: (1) whether the trial court improperly amended the record; (2) whether the trial court improperly excluded evidence pertaining to an argument between the victim and Johnson; (3) whether the trial court improperly excluded evidence purportedly explaining why Johnson traveled to Arkansas after the shooting incident; (4) whether the trial court erred in restricting Johnson's attorney from cross-examining a state witness; (5) whether the trial court erred in failing to instruct the jury on the defense of accident; (6) whether Johnson was proved guilty beyond a reasonable doubt; (7) whether it was error to play two times a recorded conversation between Johnson and the police that took place after the shooting; (8) whether the prosecutor's closing argument was prejudicial in that he referred to evidence outside the record; (9) whether Johnson received less than adequate assistance of counsel; (10) and (12) whether his § 72 motion, seeking leave to appeal, should have been addressed substantively rather than dismissed on procedural grounds; and (11) whether he was denied compulsory process precluding him from obtaining a witness' testimony, which he claims is new exculpatory evidence, that would have corroborated his defense.
Before the court may reach the merits of a petition for a writ of habeas corpus, it must ascertain whether petitioner has satisfied two distinct procedural requirements. Jones v. Washington, 15 F.3d 671, 674 (7th Cir. 1994). Failure to satisfy both requirements results in procedural default. Henderson v. Thieret, 859 F.2d 492, 496 (7th Cir. 1988). The first procedural requirement is that of exhaustion. 28 U.S.C. § 2254(b); Harris v. Champion, 15 F.3d 1538, 1554 (10th Cir. 1994) (stating that exhaustion is the threshold question in every habeas case). Out of a concern for federal-state comity, the federal courts require petitioners to give state courts an opportunity to consider petitioner's constitutional claims first. Jones, 15 F.3d at 674; Verdin v. O'Leary, 972 F.2d 1467, 1473 (7th Cir. 1992). It is incumbent on the petitioner to exhaust all possible state remedies before he may entertain a petition for habeas corpus relief. Castille v. Peoples, 489 U.S. 346, 109 S. Ct. 1056, 103 L. Ed. 2d 380 (1989); Jones, 15 F.3d at 674.
Respondent Jerry D. Gilmore ("Respondent") does not address the issue of exhaustion in its Answer as he must in violation of Rule 5 of 28 U.S.C. § 2254. See Granberry v. Greer, 481 U.S. 129, 107 S. Ct. 1671, 1675, 95 L. Ed. 2d 119 (1987) (asserting that the State "has a duty to advise the district court whether the prisoner has, in fact, exhausted all available state remedies"). The case of Truitt v. Jones, 614 F. Supp. 1342 (D.C. Ga. 1985) provides guidance. The Truitt court held that "if the respondents do not categorically state in the answer . . . their position regarding exhaustion, the defense of non-exhaustion is waived." Id. at 1346 n.10 (citing Thompson v. Wainwright, 714 F.2d 1495 (11th Cir. 1983)). However, the Supreme Court in Granberry added that an appellate court may revisit the issue in exceptional cases. Granberry, 107 S. Ct. at 1675. The standard for the appellate review in exceptional cases, then, is "whether the interests of comity and federalism will be better served by addressing the merits forthwith or by requiring a series of additional state and district court proceedings before reviewing the merits of the petitioner's claim." Id. The court finds that Respondent failed to appropriately address the exhaustion doctrine; thus, Respondent waives it as a defense.
Nevertheless, Johnson does consider the exhaustion doctrine, even though Respondent does not; and the court will address the exhaustion doctrine directly since the doctrine remains a procedural issue. Johnson asserts that he filed leave to appeal to the Illinois Supreme Court twice and filed a post-conviction petition eighteen years after the conviction on March 19, 1992. The post-conviction petition was denied by the trial court on the ground that the petition was filed untimely. Johnson concludes that, as a result of the denial, all meaningful post-conviction remedies are exhausted. Johnson cites Harris v. DeRobertis, 932 F.2d 619 (7th Cir. 1991) as authority. In Harris, the Seventh Circuit Court of Appeals addressed untimely filed post-conviction petitions under Ill. Rev. Stat. ch. 38, para. 122-1 (currently 725 ILCS 5/122-1). Id. That statute requires one to file a petition within a set period of time. The time limitation can be avoided, however, if the individual can show a lack of culpable negligence for the delay. Id. The Harris court discovered that Illinois case law had yet to recognize one instance where a petitioner established a lack of culpable negligence. Id. at 622; Jones v. Washington, 15 F.3d 671, 674 (7th Cir. 1994). Thus, the Harris court held that "a habeas claim will not be dismissed for failure to exhaust state remedies if a post-conviction petition would be untimely under [the post-conviction statute] unless Illinois precedent indicates that petitioner could demonstrate lack of culpable negligence under § 122-1." 932 F.2d at 624. "In the absence of direct precedent suggesting that the Illinois courts would allow [petitioner] to file an untimely second post-conviction petition on a claim previously raised, [petitioner] has exhausted his state court remedies." Jones, 15 F.3d at 674. In the case at bar, Johnson claims that the post-conviction petition was filed untimely and was denied on September 16, 1992. Furthermore, Respondent has not produced any Illinois precedent to indicate how a petitioner could show a lack of culpable negligence under the Illinois statute. Accordingly, since Johnson has fairly attempted to pursue the available state remedies, he has satisfied the exhaustion doctrine.
The second procedural requirement mandates that, before a federal court will hear particular issues, a petitioner for a writ of habeas corpus must raise those issues during the course of the state court proceedings. Wainwright v. Sykes, 433 U.S. 72, 53 L. Ed. 2d 594, 97 S. Ct. 2497 (1977); Jones, 15 F.3d at 674. "The substance of a federal claim in a petition for habeas corpus must first be presented to the state courts." Id. (citing Picard v. Connor, 404 U.S. 270, 278, 30 L. Ed. 2d 438, 92 S. Ct. 509 (1971)). "[A] convicted state prisoner who fails to seek leave to present to the highest state court the constitutional objections that form the basis of his federal habeas petition waives his objections unless he can show cause for his default and prejudice from the alleged constitutional infirmities." Nutall v. Greer, 764 F.2d 462, 465 (7th Cir. 1985). That is, failure to raise issues in a post-conviction proceeding results in procedural default of those issues. Id.
In the case at bar, Respondent contends that issues 1 and 4-12 were not appealed to the Illinois Supreme Court. In addition, Respondent contends that Johnson does not fall under the exception to procedural default in that Johnson has not demonstrated either cause for failing to raise the issues, or "prejudice from the alleged constitutional infirmities." (Mem. in Opp'n to Pet. for Writ at 6). In contrast, Johnson asserts that the issues have been appropriately raised.
To determine whether issues were appealed to the highest court, the focus is on the last state court to render an opinion. Prihoda v. McCaughtry, 910 F.2d 1379, 1383 (7th Cir.), cert. denied, 111 S. Ct. 93 (1990). Here, the last state court to render an opinion was the Illinois Appellate Court; its opinion is found in People v. Johnson, 42 Ill. App. 3d 425, 355 N.E.2d 699 (Ill. App. Ct. 1976). The Illinois Appellate Court addressed the following issues:
(1) did the trial court err in allowing an amendment of the record on appeal; (2) did the trial court improperly exclude certain evidence; (3) did the second playing of a tape recording of defendant's telephone conversation with the police prejudice defendant; (4) did the prosecutor's closing argument improperly refer to evidence outside the record; (5) did the trial court err in refusing to give a separate ...