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UNITED STATES EX REL. REDDING v. GODINEZ

June 28, 1995

UNITED STATES OF AMERICA ex rel. GERALD REDDING, Petitioner,
v.
SALVADOR GODINEZ, Respondent.



The opinion of the court was delivered by: MARVIN E. ASPEN

 MARVIN E. ASPEN, District Judge:

 Petitioner Gerald Redding brings this action against respondent Salvador Godinez ("the State"), seeking a writ of habeas corpus pursuant to 28 U.S.C. ยง 2254. He alleges that his present incarceration is in violation of the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution. For the reasons set forth below, the petition is denied in its entirety.

 I. Background

 The following facts are undisputed. During an argument with his girlfriend in May 1988, Redding stabbed her with a butcher knife and killed her. At the time the couple had been fighting about the victim's sexual relationships with other men. Redding later surrendered to police, and confessed to the killing. At trial Redding testified that he was "highly upset" at the time of the stabbing because the victim was taunting him about her sexual relations with other men, and defense counsel argued that the stabbing occurred in a "heat of passion." Record, at 312,390. However, the jury convicted Redding of first degree murder, and he was sentenced to fifty years in prison. On direct appeal Redding did not challenge the conviction, but only argued that the trial judge abused his discretion in sentencing him to fifty years incarceration. The Appellate Court affirmed, finding that in light of Redding's prior criminal history and the serious nature of the offense, the trial judge did not abuse his discretion. Petitioner sought leave to appeal this decision, but the Illinois Supreme Court denied this request.

 II. Discussion

 Redding asserts the following claims in his habeas corpus petition: (1) he was denied effective assistance of trial counsel, appellate counsel and post-conviction counsel, all in violation of the Sixth and Fourteenth Amendments, (2) his arrest, and the evidence obtained by the authorities subsequent to his arrest, were procured in violation of the Fourth, Fifth, Sixth and Fourteenth Amendments, (3) the prosecution's failure to turn over exculpatory evidence prior to trial constituted a violation of the Sixth and Fourteenth Amendments, (4) his fifty year sentence amounted to cruel and unusual punishment in contravention of the Eighth and Fourteenth Amendments, (5) the denial of post-conviction counsel's motion to withdraw violated Redding's right to due process, and (6) the inadequate library facilities at Stateville Correctional Center have denied him meaningful access to the courts. We first address whether Redding is procedurally bared from raising any of these issues, and then discuss the merits of any issues properly before us.

 A. Procedural Default1

 Habeas corpus petitioners are precluded from raising claims and issues which have been procedurally defaulted in the state courts--ie., claims that were rejected by the state courts pursuant to an independent and adequate state procedural rule. Coleman v. Thompson, 501 U.S. 722, 729-30, 115 L. Ed. 2d 640, 111 S. Ct. 2546 (1991). Procedural default generally occurs (1) when a petitioner pursues all of his state court appeals, but fails to raise federal claims until he files a federal petition, see Resnover v. Pearson, 965 F.2d 1453, 1458 (7th Cir. 1992), cert. denied, 113 S. Ct. 2935, 124 L. Ed. 2d 685 (1993), or (2) when a petitioner fails to pursue all of his state appeals in a timely manner. See Coleman, 501 U.S. at 735 n. 1; Jenkins v. Gramley, 8 F.3d 505, 507 (7th Cir. 1993). Where a federal claim is procedural defaulted pursuant to an independent and adequate state rule, "federal habeas review of the claim[] is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750; see also Wainwright v. Sykes, 433 U.S. 72, 53 L. Ed. 2d 594, 97 S. Ct. 2497 (1977).

 Redding claims that, after turning himself in, he was not immediately presented to the judge who issued his arrest warrant, and therefore his arrest and the use of subsequently obtained evidence violated his Fourth Amendment rights. However, as these claims were not raised in his direct appeal or post-conviction petition, they cannot now be raised in his federal habeas petition. Moreover, even if these claims were not procedurally defaulted, they are not cognizable in a habeas petition. If the state courts provide a full and fair opportunity to litigate Fourth Amendment claims, then such claims cannot be presented in a subsequent federal habeas corpus petition. Stone v. Powell, 428 U.S. 465, 485-86, 49 L. Ed. 2d 1067, 96 S. Ct. 3037 (1978). To determine whether Stone prevents petitioner from raising these claims, we evaluate whether, in the abstract, the state provides an opportunity to present Fourth Amendment claims, and whether the actual presentation of these claims was frustrated by that mechanism. United States ex rel. Bostick v. Peters, 3 F.3d 1023, 1027 (7th Cir. 1993). In the abstract Illinois clearly provides an opportunity to raise Fourth Amendment claims, and there is no indication that in this case the mechanism failed to provide Redding with such an opportunity. See Bostick, 3 F.3d at 1027 (fact that petitioner failed to raise and preserve his claim in state court does indicate that he was denied an opportunity for its full and fair litigation). *fn2" Accordingly, petitioner's Fourth Amendment claims based on his arrest are denied.

 Similarly, several of petitioner's allegations in support of his claims of ineffective assistance of counsel are also procedurally defaulted. Redding did not argue on direct appeal or in his post-conviction petition that his trial counsel failed to adequately investigate the facts of the case, interview relevant witnesses, uncover evidence of the victim's arrest record, protect his right to a jury trial, file pretrial and post-trial motions, and object during trial. Rather, the only claim of ineffective assistance of trial counsel that Redding raised in his post-conviction petition was his allegation that counsel failed to meet with him privately and sufficiently explain to him the "heat of passion" defense. Moreover, his contention that this bar should be excused because of ineffective appellate counsel is meritless. *fn3" Appellate counsel is not ineffective by refusing to raise every possible argument on appeal. See Smith v. Murray, 477 U.S. 527, 536, 91 L. Ed. 2d 434, 106 S. Ct. 2661 (1986). Rather, the failure to present an issue on appeal will constitute cause only when counsel's performance falls below an objective standard of reasonableness. Kurina v. Thieret, 853 F.2d 1409, 1413 (7th Cir. 1988), cert. denied, 489 U.S. 1085, 109 S. Ct. 1544, 103 L. Ed. 2d 848 (1989). In other words, only when "appellate counsel failed to present significant and obvious issues on appeal . . . . [and the] ignored issues are clearly stronger than those presented, will the presumption of effective assistance of counsel be overcome." Id. at 1417 (quoting Gray v. Greer, 800 F.2d 644, 646 (7th Cir. 1986)). The issues raised by Redding were neither significant, nor clearly stronger than the one issue actually presented in his post-conviction petition.

 Nor can petitioner contend that he was actually prejudiced by these omissions, as his claims of ineffective trial counsel are meritless. First, Redding contends that his lawyer failed to investigate the facts of the case and interview witnesses. Yet there were few disputed facts, and very little testimony in conflict, so trial counsel's failure to investigate or interview witnesses was not required. Moreover, Redding fails to tell us what additional investigation or interviews would have uncovered, and therefore cannot claim that he was prejudiced from any alleged inaction by his attorney. See Bassette v. Thompson, 915 F.2d 932, 940-41 (4th Cir. 1990), cert. denied, 499 U.S. 982, 113 L. Ed. 2d 734, 111 S. Ct. 1639 (1991). Second, petitioner claims that trial counsel should have discovered that the victim had been arrested one month prior to the offense for assaulting Redding. *fn4" However, Redding's "heat of passion" defense was based not on any physical aggressiveness by the victim, but on her verbal attacks. Consequently, her prior arrest had nothing to do with Redding's "heat of passion" defense, and counsel's failure to discover it could not have prejudiced him. Third, petitioner's claim that trial counsel caused an unknowing waiver of his right to a jury trial is nothing less than bizarre, since he received a jury trial. Finally, petitioner does not indicate what pretrial and post-trial motions should have been filed, or what objections should have been made. Redding cannot prevail on a claim of ineffective assistance simply by alleging a general lack of activity on the part of his attorney; rather, he must point out specific instances of malfeasance. Accordingly, as petitioner has defaulted these claims of ineffective assistance of trial counsel, and failed to demonstrate cause for the default and prejudice resulting therefrom, they are denied. *fn5"

 We next address Redding's contention that the State's failure to turn over evidence of the victim's prior arrest record constituted a violation of Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963). See also Kyles v. Whitley, 115 S. Ct. 1555, 1565-69, 131 L. Ed. 2d 490 (1995). However, petitioner failed to raise this claim either on direct appeal or in his post-conviction petition, and therefore it was defaulted. Regardless, the complained of conduct did not violate Redding's constitutional rights, as the prosecution was only obligated to turn over "material" evidence--that is, evidence which if presented would have created a reasonable probability of a different result in the proceeding. See Kyles, 115 S. Ct. at 1565-66. Here, the evidence in question--that the victim had attacked Redding just one month prior to the murder--would not have assisted him in his defense because Redding did not contend that he stabbed his girlfriend in response to physical aggression on her part. Rather, he only claimed that she provoked his anger by taunting him about her sexual relations with other men. Because there ...


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