about whether Nelson really filed what he claims he filed.
Moreover, the supreme court has absolutely no record of a pro se filing by Nelson. Nelson's counsel informed the court that the supreme court does not keep copies of correspondence, but makes all filings a part of the court record. Nelson's counsel, after a thorough search, found nothing in the supreme court file to indicate that Nelson had submitted a pro se petition for leave to appeal. Nelson's counsel also found no pro se petition for leave to appeal in Nelson's appellate defender's file, though the file contained copies of Nelson's other pro se filings as well as the two letters. The assistant attorney general now assigned to the case also searched his office's files and found no pro se petition for leave to appeal.
The most that counsel could find to support Nelson's claim were the February 20, 1991, letter from the supreme court clerk and the January 23, 1991, letter to Nelson's appellate defender, both of which he obtained from the appellate defender's file. Though the letters mention that Nelson sent the supreme court a letter and pro se petition for leave to appeal, this court cannot determine whether the petition mentioned in the letters is the same one that Nelson submitted with his motion for rehearing.
Again, the court finds this case troubling because Nelson clearly submitted something to the supreme court. However, this court cannot simply take a guess at what Nelson submitted. Based on the weight and credibility of the information before the court, including the commendable efforts of Nelson's own counsel and the official records of the Illinois Supreme Court, the court cannot find that Nelson filed the pro se petition for leave to appeal that he claims he filed.
Moreover, the court finds that holding an evidentiary hearing into this matter would serve no purpose. Nelson's counsel apparently has done all he can to uncover some record of the pro se petition supposedly filed by Nelson; thus, it seems that any further efforts would be in vain.
Accordingly, the court will consider Nelson's habeas claims based on the state court proceedings that ended with the supreme court's denying the petition for leave to appeal filed on January 17, 1991, by the state appellate defender. Thus, most of Nelson's post-conviction claims, including the eight claims now before this court, were omitted from his petition for leave to appeal. The question now is whether Illinois would consider those claims forfeited.
B. Whether Illinois would consider the omitted claims forfeited
Until recently, the Seventh Circuit had long held that a habeas petitioner must have presented all of his habeas claims to the state's highest court, and any claim not so presented would be considered procedurally defaulted. See, e.g., Nutall v. Greer, 764 F.2d 462 (7th Cir. 1985). However, in Jenkins, the court refined this rule. Relying on recent United States Supreme Court cases, the court stated that state law alone is a basis for forfeiture in habeas corpus cases, because a default "supplies an independent and adequate state ground for the judgment, so that questions of federal law no longer affect the outcome." Jenkins, 8 F.3d at 507 (citing Coleman v. Thompson, 501 U.S. 722, 746-751, 111 S. Ct. 2546, 2563-66, 115 L. Ed. 2d 640, reh'g denied, 501 U.S. 1277, 112 S. Ct. 27, 115 L. Ed. 2d 1109 (1991); Harris v. Reed, 489 U.S. 255, 109 S. Ct. 1038, 103 L. Ed. 2d 308 (1989)). The court stated that this implies that when the final state court to consider a case acts on the merits of a federal question and does not also assert an independent state ground of decision, the federal issue is open to habeas review. Jenkins, 8 F.3d at 507 (citing Ylst v. Nunnemaker, 501 U.S. 797, 111 S. Ct. 2590, 115 L. Ed. 2d 706 (1991)).
The Jenkins court found that the habeas petitioner in the case before it had not procedurally defaulted his ineffective assistance of counsel claim by failing to present it on direct appeal to the Illinois Supreme Court, because the state post-conviction court rejected his ineffective assistance claim on its merits without giving forfeiture as a ground. Jenkins, 8 F.3d at 507. Thus, the court found that the petitioner's failure to present his claim to the Illinois Supreme Court did not affect his habeas petition. Id.
However, the court found that the petitioner nonetheless forfeited his claims, including the ineffective assistance claim. The court noted that Illinois ordinarily treats failure to appeal from denial of a post-conviction petition as a procedural default barring further review. Id. (citing People v. Core, 48 Ill. 2d 544, 545-46, 272 N.E.2d 12, 13-14 (1971); Zellers v. Duckworth, 763 F.2d 250, 252 (7th Cir.), cert. denied, 474 U.S. 952, 106 S. Ct. 319, 88 L. Ed. 2d 302 (1985); Williams v. Duckworth, 724 F.2d 1439, 1442 (7th Cir.), cert. denied, 469 U.S. 841, 105 S. Ct. 143, 83 L. Ed. 2d 82 (1985)). The court thus held that the petitioner procedurally defaulted his claims by failing to appeal because Illinois requires persons seeking post-conviction relief to pursue their appellate remedies. Jenkins, 8 F.3d at 508.
Hogan, in accordance with which the Seventh Circuit instructed this court to decide Nelson's case, adhered to the concepts set forth in Jenkins, but stated them more simply. The court there stated that forfeiture under 28 U.S.C. § 2254, the habeas corpus statute, is a "question of a state's internal law: failure to present a claim at the time, and in the way, required by the state is an independent state ground of decision, barring review in federal court." Hogan, 74 F.3d at 146 (citing Coleman, 501 U.S. at 729-44, 111 S. Ct. at 2553-62; Harris, 489 U.S. at 255, 109 S. Ct. at 1038). Thus, forfeiture is limited to the issues that the state court insists be raised in its supreme court. Hogan, 74 F.3d at 146 (citing Jenkins, 8 F.3d at 507-08).
This court erred in its first opinion where it found that Nelson's failure to raise some of his habeas corpus claims in the Illinois Supreme Court on direct appeal resulted in forfeiture of those claims. Under Jenkins, Nelson's failure to present his claims to the supreme court on direct appeal does not affect his habeas corpus petition, because the state court considered his claims on their merits in the post-conviction proceedings. See Jenkins, 8 F.3d at 507. See also Cawley v. DeTella, 71 F.3d 691, 695 n.6 (7th Cir. 1995) (petitioner's failure to complete his direct appeal by not filing petition for leave to appeal would ordinarily preclude federal review, but did not in that case because the Illinois courts on post-conviction review addressed petitioner's claims on their merits).
However, as the court in Jenkins noted, Nelson's failure to complete his state appeals from the order dismissing his post-conviction petition "is a different matter entirely." Jenkins, 8 F.3d at 507. Illinois generally requires a defendant to pursue his state appeals after the dismissal of a post-conviction petition. Id. The defendant's failure to do so, "coupled with the doctrines of res judicata and waiver, ordinarily bars further consideration of all claims which could have been raised." People v. Core, 48 Ill. 2d 544, 545, 272 N.E.2d 12, 13-14 (1971) (citing Ill. Rev. Stat. ch. 38, P 122-3 (now 725 ILCS 5/122-3); People v. Holland, 33 Ill. 2d 246, 211 N.E.2d 265 (1965); People v. Chapman, 33 Ill. 2d 429, 211 N.E.2d 712 (1965)).
Illinois courts recognize an exception to the strict doctrines of res judicata and waiver, resulting in claim forfeiture, on the ground of "fundamental fairness." Cawley, 71 F.3d at 694 (citing People v. Hamby, 32 Ill. 2d 291, 294, 205 N.E.2d 456, 458 (1965)). However, the exception is quite narrow. The Illinois Supreme Court has held that a defendant's failure to appeal from a dismissal of his post-conviction petition does not result in forfeiture of the claims only where the failure to appeal results from clearly inadequate representation or from the absence of representation by counsel. Core, 48 Ill. 2d at 546-47, 272 N.E.2d at 14 (citing People v. Polansky, 39 Ill. 2d 84, 233 N.E.2d 374 (1968); People v. Slaughter, 39 Ill. 2d 278, 235 N.E.2d 566 (1968); People v. Raymond, 42 Ill. 2d 564, 248 N.E.2d 663 (1969)).
In the present case, Nelson was represented by counsel during his post-conviction proceedings, including on appeal to both the appellate and supreme courts. Nelson has not contended that his post-conviction counsel were ineffective. Thus, the "fundamental fairness" exception does not apply to his case, which means that the general forfeiture rule applies. Consequently, once Nelson filed his post-conviction petition in state court, he was required to take all of his claims to the Illinois Supreme Court. See Jones v. Washington, 15 F.3d 671, 675 (7th Cir.), cert. denied, U.S. , 129 L. Ed. 2d 870, 114 S. Ct. 2753, reh'g denied, U.S. , 129 L. Ed. 2d 926, 115 S. Ct. 28 (1994). Because he failed to do so, he forfeited his right to raise those claims in this court.
Two other exceptions to the procedural default rule exist, but neither applies to Nelson's case. First, a petitioner can overcome the effects of procedural default by showing cause for the default, as well as actual prejudice from it. Wainwright v. Sykes, 433 U.S. 72, 84, 87, 97 S. Ct. 2497, 2504, 2506, 53 L. Ed. 2d 594 (1977); Murray v. Carrier, 477 U.S. 478, 492, 106 S. Ct. 2639, 2647, 91 L. Ed. 2d 397 (1986). Second, even if a petitioner cannot show cause for his procedural default, a federal court may grant a writ of habeas corpus in the "extraordinary case" where a fundamental "miscarriage of justice" has resulted in an unjust incarceration. Carrier, 477 U.S. at 495-96, 106 S. Ct. at 2649. In such a case, the petitioner must show that a constitutional violation probably has resulted in the conviction of an innocent person. Id.
This court addressed both exceptions in its original opinion denying Nelson's petition for a writ of habeas corpus. See United States ex rel. Nelson v. Godinez, 1994 U.S. Dist. LEXIS 9755, mem. op. and order at 5-6 (N.D. Ill. July 14, 1994). The court finds that its analysis in that opinion still applies, and therefore finds that neither exception saves Nelson's claims from procedural default. Moreover, the court notes that the cause and prejudice doctrine is akin to Illinois' "fundamental fairness" exception to its claim forfeiture rule, and that the court similarly has found that the "fundamental fairness" exception is not available to Nelson.
Accordingly, since the court has found that Nelson procedurally defaulted his eight claims at issue on remand, the court need not address the claims on their merits.
For the reasons set forth above, petitioner Ordell Nelson's petition for a writ of habeas corpus is denied.
Date: AUG 02 1996
JAMES H. ALESIA
United States District Judge
JUDGMENT IN A CIVIL CASE
Decision by Court. This action came to a hearing before the Court. The issues have been heard and a decision has been rendered.
IT IS ORDERED AND ADJUDGED that petitioner Ordell Nelson's petition for a writ of habeas corpus pursuant to 28 U.S.C. Section 2254 is denied. This case is closed.
August 2, 1996