in the appeal, Webster never filed an appellate brief. On January 29, 1992, the appeals court granted Webster's motion to withdraw the petition and dismissed the appeal. Webster then attempted to bring a second appeal on post-conviction review, but that appeal was dismissed as untimely.
Webster has now filed a petition for a writ of habeas corpus in this court, in which he raises the following claims. First, he contends that the repetitious testimony of the complaining witness deprived him of a fair trial. Second, he claims that the jury instructions on the sexual assault charge did not inform the jury of the essential elements of the charges against him. Third, he complains that his sentence is excessive. Fourth, he argues that the evidence of weapon use was insufficient to support a conviction for aggravated criminal sexual assault. Fifth, Webster claims that his trial counsel was unconstitutionally deficient because the attorney failed to object to the repetitious testimony, offer jury instructions on simple criminal sexual assault, provide meaningful representation at sentencing, object to the judge's order that the jury be sequestered or inquire into the voided "not guilty" verdict form, present expert testimony regarding the effect of the complainant's previous drug use on her testimony, or elicit testimony from the complainant regarding whether Webster used a dangerous weapon during the sexual assault itself.
The preliminary step in any consideration of a petition for habeas corpus is determining whether the petitioner has complied with the requirements to exhaust state remedies and avoid procedural default of the substantive claims by adequately presenting them to the state courts. Lostutter v. Peters, 50 F.3d 392, 394 (7th Cir. 1995). "Exhaustion is accomplished when claims have been presented to the highest state court for a ruling on the merits, or, when the claims could not be brought in state court because no remedies remain available at the time the federal petition is filed." Farrell v. Lane, 939 F.2d 409, 410 (7th Cir. 1991) (citations omitted). As the Supreme Court noted in Coleman v. Thompson, 501 U.S. 722, 731, 115 L. Ed. 2d 640, 111 S. Ct. 2546 (1991), the exhaustion requirement is "grounded in principles of comity; in a federal system, the States should have the first opportunity to address and correct alleged violations of [a] state prisoner's federal rights."
The phrase "procedural default" covers a multitude of sins, but it is primarily addressed to two situations: where the prisoner's federal claims in his habeas petition were not "fairly presented" to the state courts, thus depriving them of the first opportunity to address the claims, Jones v. Washington, 15 F.3d 671, 675 (7th Cir. 1994), or where the state court decision supporting the petitioner's confinement was decided on an adequate and independent state law ground (either substantive or procedural), Coleman v. Thompson, 501 U.S. at 729-32. See United States ex rel. Balderas v. Godinez, 890 F. Supp. 732, 738 (N.D. Ill. 1995) (discussing the range of problems grouped together as "procedural default"). Forfeiture of claims by failing to comply with the state procedural requirements for raising them is an especially common problem for habeas petitioners. As the Court explained in Coleman, "just as in those cases in which a state prisoner fails to exhaust state remedies, a habeas petitioner who has failed to meet the State's procedural requirements for presenting his federal claims has deprived the state courts of an opportunity to address those claims in the first instance." Coleman, 501 U.S. at 731-32. Procedural default of a petitioner's federal claims will bar their review in a federal habeas proceeding "unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Id. at 750.
For those claims that survive the exhaustion and procedural default analysis, the standard of review is strict. Under the habeas corpus statute as recently amended, federal courts must deny a petition for habeas corpus with respect to any claim adjudicated on the merits in a state court unless the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1); see also Lindh v. Murphy, 96 F.3d 856 (7th Cir. 1996) (recently amended version of § 2254 applies to cases such as this one), cert. granted, 117 S. Ct. 726 (1997).
With the foregoing standards in mind, we now consider Webster's claims.
Exhaustion and Procedural Default
Webster currently has no state remedies that remain available to him, so we consider his claims to be fully exhausted. Several of his claims are procedurally defaulted, however. For instance, his first and second habeas claims (the admission of repetitious testimony and the wording of the jury. instructions on sexual assault) were waived by his attorney's failure to object to the testimony at trial or offer alternate instructions. People v. Webster, 175 Ill. App. 3d at 129, 131, 529 N.E.2d at 747, 748-49. Under Illinois law, such waiver prevents the waived errors from being appealed, unless the error was plain error that created a substantial possibility of prejudice. People v. Young, 133 Ill. App. 3d 886, 893, 479 N.E.2d 494, 499, 88 Ill. Dec. 881 (2d Dist. 1985). In Webster's case, the appellate court specifically considered whether the presumption of waiver should be overcome, and concluded that the grounds for an exception to the waiver rule were not present. Webster, 175 Ill. App. 3d at 129, 131, 529 N.E.2d at 747, 749. These determinations constitute an adequate and independent state ground for the state courts' denial of these claims that this court must respect. Coleman v. Thompson, 501 U.S. 722, 729-30, 115 L. Ed. 2d 640, 111 S. Ct. 2546 (1991). Accordingly, Webster's first and second claims are procedurally defaulted.
These procedural defaults might be excused if Webster could show good cause for the default and prejudice stemming from the default. Id. at 750. Webster presents no cause or prejudice for failing to proffer an alternate jury instruction on sexual assault. Webster does, however, claim cause and prejudice for the failure to object to the repetitious testimony--the cause being his trial attorney's deficient performance. While ineffective assistance of counsel may be adequate cause for procedural default, the attorney's conduct in failing to preserve the issue for appeal must have been so egregious that it falls below the level of adequacy mandated by the constitution. Murray v. Carrier, 477 U.S. 478, 488, 91 L. Ed. 2d 397, 106 S. Ct. 2639 (1986). In other words, the inmate must meet the test for ineffective assistance of counsel laid out in Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), before the requirement of good cause for the default will be met.
Webster's claim that his attorney was constitutionally ineffective for failing to object to the repetitious testimony is part of his fifth habeas claim, and as such is discussed below. For the reasons outlined below, we find that the trial attorney's performance did not fall below the Strickland standard, and thus Webster has not shown good cause and prejudice for his procedural default of the repetitious testimony issue.
Webster's fourth claim, that there was insufficient evidence of weapon use to support a conviction of aggravated criminal sexual assault,
is procedurally defaulted because Webster failed to present this claim on direct appeal, instead raising it for the first and only time in state circuit court in his post-conviction petition. Because this claim rested on evidence within the trial record, it could and should have been presented on direct appeal, and an Illinois state court would consider the claim barred from consideration on collateral review. United States ex rel. Balderas v. Godinez, 890 F. Supp. 732, 738 (N.D. Ill. 1995). As Webster has not shown cause or prejudice for his failure to raise this issue on direct appeal, we consider the claim barred from our review.
Finally, two aspects of Webster's ineffective assistance of counsel claim are also procedurally defaulted. The first aspect--that his attorney was deficient for failing to present expert testimony on the subject of the complainant's drug use--was raised for the first time in his habeas petition and was never presented to any state court. A prisoner must give the state courts "an opportunity to address those claims [that he wishes to raise in his habeas petition] in the first instance." Coleman v. Thompson, 501 U.S. at 732. Because Webster has never presented this claim to the state courts at all, we may not consider it upon a petition for habeas corpus. The second aspect, concerning his attorney's failure to elicit testimony from the complainant about whether Webster used a dangerous weapon during the sexual assault itself, was raised to a state court for the first (and only) time in Webster's post-conviction petition before the circuit court. Because Webster never actively appealed the denial of his post-conviction petition, he has waived all issues that could have been raised in such an appeal. Jenkins v. Gramley, 8 F.3d 505, 507 (7th Cir. 1993). Thus, Webster has procedurally defaulted these two aspects of his ineffective assistance of counsel claim. Webster offers no cause or prejudice for these defaults.
Having found the above claims to be procedurally defaulted, we proceed to consider the merits of the remainder of Webster's claims.
The following claims are still viable: Webster's claim that his sentence is excessive, and his claim that his trial attorney was unconstitutionally ineffective for failing to object to the repetitious testimony, offer jury instructions on simple criminal sexual assault, provide meaningful representation at sentencing, object to the judge's order sequestering the jury, and inquire into the voided "not guilty" verdict form. We take the ineffective assistance of counsel claims first.
Webster claims that the failure of his trial counsel to raise certain arguments deprived him of the effective assistance of counsel, in violation of the Sixth Amendment. The level of effectiveness required by the Sixth Amendment was laid out in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). That standard requires a reversal only if the petitioner can meet a two-pronged test: first, he must show that his attorney's performance "fell below an objective standard of reasonableness," id. at 688; and second, he must demonstrate that the deficiency of his lawyer's performance prejudiced him to the point that the proceeding was "fundamentally unfair and the result unreliable." Mason v. Hanks, 97 F.3d 887, 893 (7th Cir. 1996). There is a "strong presumption" that an attorney's assistance was effective within the meaning of the constitution. Strickland, 466 U.S. at 689. In assessing the attorney's performance, we look at the whole of his representation of the petitioner, not simply the isolated examples about which the petitioner is complaining. Kavanagh v. Berge, 73 F.3d 733, 735 (7th Cir. 1996). And as to the prejudice prong, "we employ a 'strong presumption of reliability' of the original verdict." Id.
Because both ineffectiveness and resulting prejudice must be shown, in appropriate cases a court may skip the ineffectiveness analysis and proceed directly to the prejudice question. Strickland, 466 U.S. at 697. Here, we find that Webster was not substantially prejudiced by his trial counsel's various omissions, as explained more fully below.
We first consider the attorney's failure to object to the repetitious testimony regarding the complaining witness's version of events. The complainant was permitted to testify once in detail about what happened on September 10, 1984; she then gave a summary of the same events in testifying about what she told the police when they arrived after her call; and she testified a third time in more detail about the events as part of establishing that the written police report of her story, given later at the police station, was consistent with what actually happened. The two police officers also testified about what the complainant had told them.
Thus, the complainant's version of events was repeated five times, while Webster's version was given only once, during his own testimony. Webster notes that credibility was the central issue in his case, as his defense was that the complainant consented to the sexual contact. Referring to the complainant's admission that she was convicted of drug possession and delivery a few years earlier, Webster claims that, "when all is said and done, this case was the word of a convicted drug dealer . . . against the word of a convicted armed robber." Petitioner's Reply at 3. He argues that the repetition of the complainant's story may have improperly reinforced it in the jurors' minds, tipping the balance in a case that hinged on credibility. Thus, he claims that his attorney's failure to object to the repetition may have been the straw that resulted in his conviction.
While Webster's trial attorney may have erred in not preventing the complaining witness from testifying three times about the same events,
we cannot discern any prejudice that resulted. The jury heard the complainant's admission of her prior drug conviction, and they surely grasped that, with Webster's consent defense, the case boiled down to a "swearing contest." Simply hearing a story more than once does not make it true--a fact within the common experience of the jurors. We do not find that, but for the trial attorney's failure to object to the complainant's repetitious testimony, "the result of the proceeding would have been different." Strickland, 466 U.S. at 694.
Webster's other claims of attorney error are no more successful. Webster complains that his attorney did not offer jury instructions on the lesser included offense of simple criminal sexual assault; object to the judge sequestering the jury or inquire into the voided "not guilty" verdict form; or adequately represent him at sentencing. With regard to the asserted deficiency in sentencing representation, the only defect that Webster identifies is the attorney's failure to tell the judge that Webster was then attending school. As Webster himself remedied this fault by telling the judge directly that he was a current student, we cannot see any prejudice from his attorney's failure to mention school attendance. Likewise, there was nothing to be gained from the attorney objecting to the judge's decision to sequester the jury, or inquiring into the voided "not guilty" form. Webster cites no law indicating that either of these actions had any legal significance, let alone that they could render an attorney's performance constitutionally deficient.
As for the decision not to offer a jury instruction on a lesser included offense, that is within the realm of trial strategy, an area in which Monday morning quarterbacking is discouraged. See Strickland, 466 U.S. at 688-89 (no hard and fast rules for defense counsel's conduct; such rules would "restrict the wide latitude counsel must have in making tactical decisions"). "[A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that . . . the challenged action 'might be considered sound trial strategy.'" Id. at 689. Webster's attorney may well have believed that offering the jury only two options on the sexual assault counts--conviction on aggravated criminal sexual assault, where the State's evidence of the weapon use necessary to prove the "aggravated" nature of the crime was weak, or acquittal--would push the jury toward acquittal. That his strategy misfired is no proof of ineffectiveness; even the best trial attorney may misjudge trial strategy on occasion.
For all of the above reasons, Webster's claim of attorney ineffectiveness fails. His second claim that his sentence is excessive also fails. In reviewing the length of sentences imposed for state crimes, federal courts must defer to the prerogative of state legislatures to determine the appropriate measure of punishment for various offenses. Harmelin v. Michigan, 501 U.S. 957, 998-99, 115 L. Ed. 2d 836, 111 S. Ct. 2680 (1991) (Kennedy, J., concurring); Rummel v. Estelle, 445 U.S. 263, 284-85, 63 L. Ed. 2d 382, 100 S. Ct. 1133 (1980). Indeed, if the sentence imposed by a state court is within the range established by state law, "its severity is not sufficient grounds for relief on federal habeas corpus." United States ex rel. Sluder v. Brantley, 454 F.2d 1266, 1269 (7th Cir. 1972).
Few limits on the length of sentences for state are imposed by the Eighth Amendment's prohibition against cruel and unusual punishments. One is that the sentence imposed by the state must be based on objective factors. Coker v. Georgia, 433 U.S. 584, 592, 53 L. Ed. 2d 982, 97 S. Ct. 2861 (1977) (plurality opinion). The statute under which Webster was sentenced is based on an objective factor--the commission of two class X felonies within ten years, among other things. See Ill. Rev. Stat. ch. 38, §§ 1005-5-3.2(b)(1) & 1005-8-2 (1983) (now codified as amended at 730 ILCS 5/5-5-3.2(b)(1) & 5/5-8-2 (1997)). Webster admits that, as he had committed two class X felonies within ten years, he was eligible for an extended term sentence such as the one he received. He argues, however, that his sentence is disproportionate to the time served by other state inmates convicted of similar crimes. In support, he offers a chart showing mean sentences and time served for state prisoners who were released from prison in 1984.
There is a narrow disproportionality element to the Eighth Amendment, but as Justice Kennedy noted, "it forbids only extreme sentences that are 'grossly disproportionate' to the crime." Harmelin, 501 U.S. at 1001 (Kennedy, J., concurring) (citations omitted). In Harmelin, the Supreme Court held that a mandatory life sentence for a first-time criminal convicted of possessing 650 grams of cocaine did not violate the Eighth Amendment's proportionality requirement. Id. at 994-96. To paraphrase the Seventh Circuit's analysis of a similar proportionality claim in Holman v. Page, 95 F.3d 481, 485 (7th Cir. 1996) (affirming life sentence without parole for juvenile), "with Harmelin as a point of reference, there is no chance" that Webster's sentence of 60 years for a second felony conviction of aggravated criminal sexual assault violates the Eighth Amendment. Webster's chart does not show otherwise; it shows only that many state prisoners receive shorter sentences for rape or sexual assault than he did, not that the sentence he received was disproportionate to the crime.
After carefully reviewing all of the parties' submissions, the Court concludes that, for the foregoing reasons, Webster's petition for a writ of habeas corpus must be denied.
United States District Judge
May 22, 1997
JUDGMENT IN A CIVIL CASE
IT IS ORDERED AND ADJUDGED Judgment is entered in favor of the respondents George DeTella and James Ryan and against the petitioner Gaines Webster. Petitioner Gaines Webster's petition for a writ of habeas corpus is dismissed with prejudice. This cause of action is dismissed in its entirety. There being no just reason for delay, this is a final and appealable order.
May 22, 1997