whether defendant would testify does not support Frierson's claim.
At first, defense counsel told the judge that Frierson would testify at trial. (Supplemental Response at B21.) When the judge later made a ruling adverse to the defense regarding other evidence the defense sought to have admitted, defense counsel told the judge that the judge was forcing defendant to testify to get his defense into evidence. (Id. at B30.) When the judge implied that defense counsel had to decide before they gave their opening statements whether Frierson would testify, defense counsel protested that Frierson had a right to wait until the state rested before he had to decide if he wanted to testify. (Id. at B38.) When the judge later reiterated his adverse evidentiary ruling, defense counsel told the judge that by his ruling, he had forced Frierson to choose between his constitutional right to remain silent and his right to present a defense. (Id. at C90.)
The trial judge and defense counsel discussed the admissibility of other evidence that would support Frierson's defense theory, and then the judge asked defense counsel whether they wanted to put Frierson on the record as to whether or not he was going to testify. (Id. at C110-11.) Defense counsel responded that they did not think it was necessary because they and Frierson had a pretty decent relationship. (Id. at C111.) The judge warned defense counsel that they had to put on the record that they talked to Frierson about his testifying, because if he were convicted, he would claim that they did not tell him that he had a right to testify. (Id. at C111.) Regardless of the trial judge's warning, defense counsel never made a record that they told Frierson about his right to testify.
The foregoing colloquy indicates that defense counsel were quite conscious of Frierson's right, and possible need, to testify, and that they were wrestling with the difficult decision of whether to put Frierson on the witness stand. In the complete absence of any evidence to the contrary, the court presumes that defense counsel acted professionally and competently, discussed important decisions with Frierson, and informed Frierson of his right to testify.
Because Frierson has made nothing more than a "barebones assertion" that his counsel failed to tell him of his right to testify and instead told him that he could not testify, the court will not grant an evidentiary hearing or other action on Frierson's claim.
F. Rights to confront accuser and present defense
In his reply to the state's answer to his habeas corpus petition, Frierson raises a new claim not included in his petition. Frierson contends that the trial court's refusal to permit him to impeach the victim concerning her prostitution activities deprived Frierson of his constitutional rights under the Sixth and Fourteenth Amendments to present his case and confront his accuser.
This claim was not included in Frierson's petition for a writ of habeas corpus. Therefore, the state was not given an opportunity to respond to it. Nonetheless, the court is able to decide the claim without the state's input.
Frierson presented this same argument to the Illinois Appellate Court on direct appeal from his conviction. (See Answer Ex. A and B.) In affirming Frierson's conviction, the appellate court rejected the merits of the argument. In his petition for leave to appeal to the Illinois Supreme Court, Frierson did not raise the issue of whether he should have been permitted to impeach the victim by evidence of her prostitution activities, and instead based his petition on various other claims of error. (See id. Ex. E.) Similarly, Frierson did not raise the impeachment argument in post-conviction proceedings. (See id. Ex. G, H, and I.)
Federal courts will not consider a claim raised in a habeas corpus petition that has been procedurally defaulted in state court. See Coleman v. Thompson, 501 U.S. 722, 732, 111 S. Ct. 2546, 2555, 115 L. Ed. 2d 640 (1991). Until recently, the Seventh Circuit had long held that any claim that the habeas petitioner failed to present to the state's highest court would be considered procedurally defaulted. See, e.g., Nutall v. Greer, 764 F.2d 462, 463 (7th Cir. 1985). However, in Hogan v. McBride, 74 F.3d 144 (7th Cir. 1996), the court cast doubt on the unequivocal rule that failure to appeal to the state's highest court automatically results in procedural default. The court stated that forfeiture under 28 U.S.C. § 2254 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 v. Reed, 489 U.S. 255, 262, 109 S. Ct. 1038, 1043, 103 L. Ed. 2d 308 (1989)). The court warned that "future litigants cannot read Nutall and its successors as absolute bars even in Illinois. In every case, the initial question is whether the state demands that the particular kind of issue be presented in a petition for discretionary review, on pain of forfeiture." Hogan, 74 F.3d at 147.
In short, Hogan dictates that forfeiture is limited to the issues that the state court insists be raised in its supreme court. Id. at 146 (citing Jenkins v. Gramley, 8 F.3d 505, 507-08 (7th Cir. 1993)). Consequently, in determining whether a habeas petitioner has forfeited his claims, the district court must determine "whether the state courts either have held that a procedural misstep is a forfeiture, or would hold so if a collateral attack were filed in state court." Hogan, 74 F.3d at 147.
A defendant's failure to seek relief on claims that he could have presented to the Illinois Supreme Court on direct review is grounds for waiver under Illinois law. United States ex rel. Bailey v. Page, 1996 U.S. Dist. LEXIS 11241, No. 95 C 7025, 1996 WL 452272, *3 (N.D. Ill. Aug. 8, 1996) (citing People v. Titone, 151 Ill. 2d 19, 25 n.2, 600 N.E.2d 1160, 1163 n.2, 175 Ill. Dec. 702 (1992); Cawley v. DeTella, 71 F.3d 691, 695 (7th Cir. 1995)). Accordingly, once Frierson failed to present his claim to the Illinois Supreme Court on direct appeal, under Illinois law, he forfeited the claim.
Illinois courts recognize an exception to the strict doctrine of waiver 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: a defendant's failure to appeal does not result in forfeiture of the claims only where the failure to appeal results from clearly inadequate representation or the absence of representation by counsel. See People v. Core, 48 Ill. 2d 544, 546-47, 272 N.E.2d 12, 14 (1971) (applying the exception in the context of a failure to appeal from dismissal of a post-conviction proceeding).
In the present case, Frierson was represented by counsel from the public defender's office on his petition for leave to appeal to the supreme court. Frierson has made no allegations that his counsel who prepared the petition for leave to appeal was clearly inadequate, and the court has found no other indication that counsel was clearly inadequate. Thus, the "fundamental fairness" exception does not apply to Frierson's case.
Two other exceptions to the procedural default rule exist, but neither applies to Frierson's case. First, a petitioner can overcome the effects of procedural default by showing cause for the default, as well as actual prejudice from the alleged constitutional violation. 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.
Frierson has not shown cause for his procedural default. As the court noted above, Frierson was represented by counsel throughout his direct appeal process, and the court has seen nothing that indicates that his counsel was ineffective or that Frierson was somehow prevented from presenting to the Illinois Supreme Court his argument regarding his rights to confront his accuser and present a defense.
Moreover, Frierson has not shown that a fundamental miscarriage of justice has resulted in his being unjustly incarcerated. That is, he has not shown that the trial court's refusal to allow him to impeach the victim with evidence of her prostitution activities probably resulted in the conviction of an innocent person. Frierson has not attempted to argue that he was actually innocent and unjustly incarcerated. More important, the court notes that the evidence against Frierson at trial was substantial. Frierson's is not the "extraordinary case" that warrants an exception to the general rules of procedural default.
Accordingly, Frierson has forfeited his claim that the trial court deprived him of his Sixth and Fourteenth Amendment rights to present a defense and confront his accuser, and the court will not address the argument on its merits.
For the reasons set forth above, the court denies Frierson's petition for a writ of habeas corpus and motion for appointment of counsel.
Date: JAN 30 1997
JAMES H. ALESIA
United States District Judge