Hodges bases his ineffective assistance of appellate counsel claim on the latter's failure to argue that Mr. Hodges' trial counsel was ineffective, that the sentence was excessive, and that the prosecution did not meet the reasonable doubt standard. Therefore, the state court was only informed of one factual basis for the instant claim of ineffective assistance of appellate counsel--reasonable doubt. Thus, Mr. Hodges procedurally defaulted the ineffective assistance of appellate counsel claim, except in so far as it is based on the reasonable doubt issue. See id. at 360-61; Steward, 80 F.3d at 1211-12.
iii. Post-Conviction Counsel
Finally, regarding the ineffective assistance of post-conviction counsel, no U.S. constitutional right to post-conviction counsel exists. Therefore, its deprivation is not cognizable as grounds for a federal habeas corpus petition. Keith v. McCaughtry, 775 F. Supp. 290, 294 (E.D. Wis. 1991), aff'd, 1 F.3d 1244 (7th Cir. 1993).
i. Trial Counsel
Procedural default can be excused only if the petitioner shows "adequate cause to excuse his failure to raise the claim in state court and actual prejudice resulting from the default." Farrell v. Lane, 939 F.2d 409, 411 (7th Cir. 1991).
Mr. Hodges argues that the cause for his failure to properly raise ineffective assistance of trial counsel in state court was ineffectiveness of his appellate counsel. Ineffective assistance of counsel, if proven, can constitute "cause" for the purpose of procedural default. United States ex rel. Simmons v. Gramley, 915 F.2d 1128, 1132 (7th Cir. 1990). Before a petitioner can use ineffective assistance of counsel as cause for procedural default, "he must first present this claim as an independent claim to the state courts either on direct appeal or in post-conviction proceedings." Lemons, 54 F.3d at 360 (emphasis added). Therefore, Mr. Hodges had to have argued in state court that his appellate counsel was ineffective because he did not raise ineffectiveness of trial counsel. This Mr. Hodges had not done. As discussed above, in his post-conviction petition, Mr. Hodges argued only that his appellate counsel was ineffective because he failed to raise the issue of reasonable doubt. Therefore, Mr. Hodges' default with respect to the issue of ineffective assistance of trial counsel is not excused by alleged ineffectiveness of appellate counsel.
ii. Appellate Counsel
Mr. Hodges also argues that the procedural default with respect to the ineffective assistance of appellate counsel is excused by the ineffective assistance of post-conviction counsel. "Ineffective assistance of post-conviction counsel is not itself a cognizable federal constitutional violation and may not[, therefore,] serve as cause for a procedural default." Steward, 80 F.3d at 1212.
iii. General Reasons for Default
Finally, Mr. Hodges argues generally that his reasons for not raising claims in state court are (1) that he did not prepare his post-conviction petition, but had another prisoner do so; (2) that Mr. Hodges has no legal knowledge or skills; and (3) that his attorneys advised him that the claims they were choosing not to raise had no merit. Cause may be demonstrated by "external objective impediments" to compliance with state procedures, such as reasonable unavailability of factual or legal bases for a claim or interference by officials. Cawley, 71 F.3d at 696 (quoting Murray v. Carrier, 477 U.S. 478, 488, 106 S. Ct. 2639, 91 L. Ed. 2d 397 (1986)). The Seventh Circuit has "held that limitations like illiteracy and limited education are not objective external impediments of this sort." Id. (citing Henderson v. Cohn, 919 F.2d 1270, 1272-73 (7th Cir. 1990) ("failure to act or think like a lawyer cannot be cause for failing to assert a claim") (quotation omitted)). Thus, the reasons presented by Mr. Hodges do not constitute cause for the purposes of excusing procedural default. Accordingly, I may not consider the merits of the ineffective assistance of counsel claims, except the claim that the petitioner's appellate counsel was ineffective for failing to raise the issue of reasonable doubt, because this issue was not procedurally defaulted.
c. Merits/Ineffective Assistance of Appellate Counsel For Failing to Raise Reasonable Doubt Argument
My disposition of this habeas corpus petition is governed by the recently amended Section 2254 of Title 28 of the United States Code, which provides, in pertinent part, that
an application for a writ of habeas corpus . . . shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim--
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or