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CHATMAN v. PAGE

November 17, 1994

PAUL CHATMAN, Petitioner,
v.
THOMAS PAGE, Warden, Respondent.



The opinion of the court was delivered by: MILTON I. SHADUR

 Paul Chatman ("Chatman"), represented by counsel other than the retained lawyer who had handled his criminal defense and the appeal from his conviction (as to the appeal, see 145 Ill. App. 3d 648, 495 N.E.2d 1067, 99 Ill. Dec. 332 (1st Dist. 1986)), has filed a Petition for Writ of Habeas Corpus ("Petition") under 28 U.S.C. § 2254 ("Section 2254"). In accordance with Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts ("Section 2254 Rules"), this Court has reviewed the Petition and its accompanying exhibits and finds that all of Chatman's claims are wanting as a matter of law.

 Verdin v. O'Leary, 972 F.2d 1467 (7th Cir. 1992) has spelled out in detail the operative standard for judging federal habeas petitions brought by persons convicted of crimes under state law. Although it is tempting to quote Judge Ripple's full treatment of the subject ( id. at 1472-76) because it provides such definitive teaching for this case, a few brief excerpts will suffice ( id. at 1472-73, 1474 and 1474-75 (footnotes omitted):

 
Under section 2254 of Title 28, "Before considering a petition for habeas corpus on its merits, a district court must make two inquiries--whether the petitioner exhausted all available state remedies and whether the petitioner raised all his claims during the course of the state proceedings. If the answer to either of these inquiries is 'no,' the petition is barred either for a failure to exhaust state remedies or for a procedural default." Henderson v. Thieret, 859 F.2d 492, 496 (7th Cir. 1988), cert. denied, 490 U.S. 1009, 109 S. Ct. 1648, 104 L. Ed. 2d 163 (1989). The Supreme Court has interpreted section 2254's definition of exhaustion to require that a petitioner "fairly present" the federal issue to the state courts as a precondition to exhaustion. Picard v. Connor, 404 U.S. 270, 275, 92 S. Ct. 509, 512, 30 L. Ed. 2d 438 (1971). It is also well-established that the issue of fair presentment is a useful approach for analyzing procedural default. See United States ex rel. Sullivan v. Fairman, 731 F.2d 450, 453 n.4 (7th Cir. 1984) ("The analysis dealing with whether a state court has been fairly apprised of potential constitutional ramifications of a claimed trial court error is equally applicable to waiver cases.").
 
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The Daye [v. Attorney General of New York, 696 F.2d 186, 194 (2d Cir. 1982) (en banc)] formulation we have adopted makes it quite clear that, for a constitutional claim to be fairly presented to a state court, both the operative facts and the "controlling legal principles" must be submitted to that court. Picard v. Connor, 404 U.S. 270, 277, 92 S. Ct. 509, 513, 30 L. Ed. 2d 438 (1971).
 
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As we said in Sullivan, 731 F.2d at 453: "A habeas petitioner must provide the state courts with a fair opportunity to apply constitutional principles and correct any constitutional error committed by the trial court."
 
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What is important is that the substance of the federal claim be presented fairly. Anderson [v. Harless], 459 U.S. [4], 6 [(1982) (per curiam)], 103 S. Ct. at 277, 74 L. Ed. 2d 3; see Varnell v. Young, 839 F.2d 1245, 1248 (7th Cir. 1988). It is incumbent on the petitioner to "raise the red flag of constitutional breach." Dougan v. Ponte, 727 F.2d 199, 201 (1st Cir. 1984).
 
Chatman simply has not done what Verdin demands--at least

 neither the Petition nor the Illinois Appellate Court decision ruling on his appeal gives any hint that he has done so. Indeed, Petition P 6 candidly acknowledges that deficiency, ascribing Chatman's default in that respect to the lawyer who represented him both at trial and on appeal:

 
6. The grounds for relief stated above were not previously presented in any other court, state or federal, due to the fact that the same attorney represented Paul Chatman both at the trial level and the Circuit Court of Cook County, Illinois and at the Appellate level in the Illinois Appellate Court. That attorney was Burton A. Brown, 205 West Wacker Drive, Suite 1000, Chicago, Illinois 60606.

 That charge is all of a piece with the fact that the Petition ties each of Chatman's present contentions of constitutional deprivation to the allegedly constitutionally ineffective ...


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