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HODGES v. HAWS

February 21, 1997

ONDRA HODGES, Petitioner,
v.
J. RONALD HAWS, Respondent.



The opinion of the court was delivered by: BUCKLO

 Ondra Hodges petitions for writ of habeas corpus. For the following reasons, the petition is denied.

 Background

 Following a bench trial, Mr. Hodges was convicted of residential burglary and was sentenced to 20 years of imprisonment. The petitioner appealed his conviction. The Illinois Appellate Court affirmed on August 26, 1993. Mr. Hodges did not appeal this affirmance to the Illinois Supreme Court.

 Subsequently, proceeding pro se, Mr. Hodges filed a post-conviction petition. The trial court dismissed. Mr. Hodges appealed the dismissal, but the Illinois Appellate Court affirmed. Mr. Hodges filed a Petition for Leave to Appeal the affirmance to the Illinois Supreme Court. The Illinois Supreme Court denied the Petition.

 The grounds for Mr. Hodges' habeas corpus petition are the following: (1) ineffective assistance of trial counsel; *fn1" (2) ineffective assistance of appellate counsel; (3) ineffective assistance of post-conviction counsel; (4) excessive sentence; (5) the government's failure to prove the petitioner's guilt beyond a reasonable doubt; (6) the trial court's erroneous dismissal of his post-conviction petition; and (7) the government's failure to turn over to the defense exculpatory evidence. *fn2"

 I can address the merits of Mr. Hodges' claims only if he has exhausted state remedies and if the claims are not procedurally defaulted. Cawley v. DeTella, 71 F.3d 691, 693-94 (7th Cir. 1995). The "exhaustion" requirement dictates that "if the state courts have not yet had a full and fair opportunity to consider the petitioner's constitutional claims and remain open to address these claims, the petitioner must take his claims there first." Id. (emphasis added). This requirement is satisfied, because the time for filing a Petition for Leave to Appeal the conviction affirmance to the Illinois Supreme Court has passed. Ill. S. Ct. R. 315(b) (West Supp. 1996).

 1. Ineffective Assistance of Counsel

 Mr. Hodges argues that he was denied effective assistance of trial, appellate, and post-conviction counsel.

 i. Trial Counsel

 "Before a federal court may review the merits of a claim raised by a state prisoner in a habeas petition, the petitioner must fulfill the procedural requirements set by state law for seeking judicial review in the state courts." Lemons v. O'Sullivan, 54 F.3d 357, 360 (7th Cir. 1995). Under Illinois law, a claim of ineffective assistance of trial counsel, which could have been raised on direct appeal but was not, is deemed waived. However, if the claim rests on matters outside the trial record, a post-conviction petition is the appropriate avenue of review. People v. Britz, 174 Ill. 2d 163, 673 N.E.2d 300, 306, 220 Ill. Dec. 388 (1996); see also Lemons, 54 F.3d at 360 ("a defendant who neglects to raise a claim of inadequate representation on direct appeal may not later assert that claim in a petition for post-conviction relief . . . [unless] the basis for the claim does not appear on the record") (quotation omitted).

 In the instant petition, Mr. Hodges claims that his trial counsel was ineffective in that he failed to request a jury instruction for a lesser included offense of trespass to a residence; to argue insufficiency of evidence to prove guilt beyond a reasonable doubt; *fn3" to properly impeach a state witness; and to object to trial judge's closing comments directed at the petitioner. All of these arguments are based on facts appearing in the record and, as such, should have been presented on direct appeal. Yet, the sole issue Mr. Hodges raised on appeal was whether the trial court abused its discretion in imposing a 20 year sentence by overemphasizing aggravation and ignoring mitigation matters. Thus, Mr. Hodges procedurally defaulted the above ineffective assistance of trial counsel claims. *fn4" See Lemons, 54 F.3d at 360.

 Mr. Hodges also argues that his trial counsel was ineffective because he failed to present as exculpatory evidence fingerprints on candle holders from the burglarized home and shoe prints found at the scene of the crime. Since these allegations concern matters outside the record, Mr. Hodges did not waive them by not raising them on direct appeal. However, the proper avenue for bringing them to the attention of an Illinois court was a post-conviction petition. People v. Johnson, 272 Ill. App. 3d 479, 650 N.E.2d 637, 644, 208 Ill. Dec. 943 (1995). Mr. Hodges did not employ that avenue, thereby procedurally defaulting the above claims of ineffective assistance of trial counsel. See Lemons, 54 F.3d at 361.

 ii. Appellate Counsel

 To avoid procedural default, a petitioner must have given the Illinois state courts a full and fair opportunity to review the claims at issue. Morrison v. Duckworth, 898 F.2d 1298, 1300 (7th Cir. 1990). "A claim has been fairly presented to a state court if a petitioner has clearly informed the state court of the factual basis of that claim." Steward v. Gilmore, 80 F.3d 1205, 1212 (7th Cir. 1996) (quotation omitted).

 Mr. Hodges raised the ineffective assistance of appellate counsel in his post-conviction petition. Lemons, 54 F.3d at 360 n.2 ("Illinois courts have held that . . . claims of ineffective assistance of appellate counsel are properly adjudicated in proceedings on petition for post-conviction relief"). He argued that counsel was ineffective because he failed to raise the issue of reasonable doubt. In the instant petition, on the other hand, Mr. 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 ...


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