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UNITED STATES EX REL. HARRIS v. NELSON

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION


March 6, 1996

UNITED STATES OF AMERICA ex rel. MICHAEL K. HARRIS, Petitioner,
v.
KEITH O. NELSON, Respondent.

The opinion of the court was delivered by: MORAN

MEMORANDUM AND ORDER

 This is the second petition of Michael K. Harris for habeas corpus, filed pursuant to 28 U.S.C.A. ยง 2254. Harris now alleges the ineffective assistance of counsel and the denial of a right to an evidentiary hearing (during his state post-conviction proceeding) to determine if his counsel was in fact ineffective. For the reasons stated herein, Harris' petition is dismissed as an abuse of the writ.

 BACKGROUND

 Petitioner was convicted of murder, attempted murder, and two counts of aggravated battery by a jury of his peers and was sentenced to three consecutive prison terms of 40, 12, and 5 years and to one concurrent term of 5 years, totalling 57 years. The Illinois Appellate Court affirmed his conviction and sentence, People v. Harris, 123 Ill. App. 3d 899, 463 N.E.2d 1030, 79 Ill. Dec. 476 (Ill.App.1st Dist. May 10, 1984), and the Illinois Supreme Court denied his petition for leave to appeal. See U.S. ex rel. Harris v. Thieret, (No. 86 C 5100), 1987 U.S. Dist. LEXIS 8992, 1987 WL 17833, (N.D.Ill. Sept. 28, 1987).

 On September 24, 1987 this court denied Harris's first petition for habeas corpus relief. United States ex rel. Harris v. Thieret, (No. 86 C 5100), 1987 U.S. Dist. LEXIS 8992, 1987 WL 17833, (N.D.Ill. Sept. 28, 1987). We dismissed his challenge relating to the jury instructions for failure to present the constitutional argument to the state courts Id. We dismissed the claim related to consecutive sentencing on the merits. Id.

 Petitioner then asked the state for post-conviction relief, alleging the ineffective assistance of trial counsel. The petition was dismissed (March 23, 1992), and we assume arguendo that an appeal from the dismissal and leave to appeal to the state Supreme Court were both denied. *fn1" Harris then filed his second petition for habeas corpus which respondents now seek to have dismissed as an abuse of the writ. *fn2" Petitioner argues that his ineffective assistance of counsel claim was unexhausted when he filed his first habeas petition and that the evidentiary hearing challenge did not arise until the conclusion of the state post-conviction proceedings which was also subsequent to the first federal petition.

 DISCUSSION

 Our analysis begins with McCleskey v. Zant, 499 U.S. 467, 113 L. Ed. 2d 517, 111 S. Ct. 1454, reh'g denied, 501 U.S. 1224, 115 L. Ed. 2d 1010, 111 S. Ct. 2841 (1991), for that case sets the analytical framework for abuse of writ cases. The McCleskey Court held that a successive habeas petition may be dismissed under the abuse doctrine even if the subsequent claim was not "deliberately abandoned" in the first petition, id. at 487, 489, unless the petitioner can show cause and prejudice for his failure, id. at 493, or that a fundamental miscarriage of justice would ensue, id. at 494. "Cause" is defined as "some objective factor external to the defense" which prevented the petitioner from bringing all of his claims at once. See id. at 493 (citing Murray v. Carrier, 477 U.S. 478, 488, 91 L. Ed. 2d 397, 106 S. Ct. 2639 (1986)). *fn3" A partial list of objective factors includes official interference, a retroactive change in the law, or a legal basis that was not reasonably available when the first petition was filed. See Murray, 477 U.S. at 488 (citations omitted). Generally, the fact that petitioner is proceeding pro se will not constitute sufficient cause. U.S. ex rel. Cawley v. Detella (No. 93 C 3464), 1994 U.S. Dist. LEXIS 6720, 1994 WL 233810 at *4 (N.D. Ill. May 20, 1994), aff'd by 71 F.3d 691 (7th Cir. 1995) (listing illiteracy and limited education); Cornman v. Armontrout, 959 F.2d 727, 729 (8th Cir. 1992) (citations omitted). In this case petitioner asks us to excuse his failure to bring all of his federal habeas claims at once because they were not all exhausted when he filed his first petition. We regret that we cannot.

  Petitioner had both exhausted and unexhausted claims when he filed his first petition. He chose to proceed with the exhausted claims in federal court and let the unexhausted claims rest in the background. It was only after he was denied habeas relief in federal court that petitioner decided to exhaust his ineffective assistance of counsel claim in the state court system. And it was only during the state post-conviction proceedings that his evidentiary hearing claim could have arisen. When he was denied relief in state court he filed this habeas petition. Since the timing of the first federal action was completely within petitioner's control, his failure to heed the Rose v. Lundy, 455 U.S. 509, 71 L. Ed. 2d 379, 102 S. Ct. 1198 (1982) (plurality), dicta is fatal. The Rose Court held a habeas petitioner to a "total-exhaustion" rule, forbidding district courts from entertaining any petitions that included both exhausted and unexhausted claims. Id. at 522. *fn4" This rule, the Court noted, leaves petitioner in the position of "returning to state court to litigate his exhausted claims, or of proceeding with only his exhausted claims in federal court." Id. at 514. The former route may delay a petitioner's relief, but by choosing the latter procedure (i.e., amending the petition to delete any unexhausted claims) "the prisoner would risk forfeiting consideration of his unexhausted claims in federal court." Id. at 520. *fn5" A number of other federal courts have held that a second habeas petition bringing claims that were unexhausted when the first petition was filed, must be dismissed as an abuse of the writ. See Jones v. Estelle, 722 F.2d 159, 169 (5th Cir. 1983) (en banc), cert. denied 466 U.S. 976, 80 L. Ed. 2d 829, 104 S. Ct. 2356 (1984); Valeriano v. Meachum, 792 F. Supp. 146 (D.Conn. 1992); Rogers v. Whitley, 717 F. Supp. 706 (D.Nev. 1989). Cf. McCorquodale v. Kemp, 832 F.2d 543, 545 (CA11 1987) ("McCorquodale seeks to justify his counsel's failure to examine the record for available but unexhausted claims because he did not want to bring a mixed petition that would have been dismissed. This is not a justification. Rule 9 reflects a strong federal policy against piecemeal adjudication of federal hearing claims"), reh'g denied 829 F.2d 1132 (11th Cir. 1987) and cert. denied 483 U.S. 1055 (1987). *fn6"

 Two other facts persuade us that plaintiff's petition must be dismissed as an abuse of the writ. First, comity counsels in favor of this rule. Our first memorandum and order was issued nine years ago, and such a length of time makes it particularly inappropriate for a federal court to reverse a state court conviction because it leaves the state with little real opportunity to cure the defects. Second, petitioner definitely knew about his ineffective assistance of trial counsel claims at least by the end of the trial, because during sentencing he accused his attorney of forcing him to perjure himself on the stand (tr. pp. 1012, 1014-15). Thus, all the facts necessary for his ineffective assistance claims were available when he filed his first habeas petition. He could have exhausted this claim in the state post-conviction proceeding (and forced the evidentiary hearing to the surface) before filing his first habeas petition. This is precisely the position which the Rose Court anticipated, and his failure to follow the appropriate procedures forces us to dismiss his second petition for habeas corpus as an abuse of the writ.

 Finally, since petitioner does not claim that he is actually innocent of the crimes for which he was sentenced, he does not meet the fundamental miscarriage of justice standard. See McCleskey, 499 U.S. at 495.

 CONCLUSION

 For the foregoing reasons, Harris' petition is dismissed as an abuse of the writ.

 JAMES B. MORAN,

 Senior Judge, U.S. District Court

 March 6, 1996.


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